N.Y. Criminal Procedure Law § 400.20: Procedure for determining whether defendant should be sentenced as a persistent felony offender

§ 400.20 Procedure for determining whether defendant should be

sentenced as a persistent felony offender.

1. Applicability. The provisions of this section govern the

procedure that must be followed in order to impose the persistent felony

offender sentence authorized by subdivision two of section 70.10 of the

penal law. Such sentence may not be imposed unless, based upon evidence

in the record of a hearing held pursuant to this section, the court (a)

has found that the defendant is a persistent felony offender as defined

in subdivision one of section 70.10 of the penal law, and (b) is of the

opinion that the history and character of the defendant and the nature

and circumstances of his criminal conduct are such that extended

incarceration and lifetime supervision of the defendant are warranted to

best serve the public interest.

2. Authorization for hearing. When information available to the

court prior to sentencing indicates that the defendant is a persistent

felony offender, and when, in the opinion of the court, the available

information shows that a persistent felony offender sentence may be

warranted, the court may order a hearing to determine (a) whether the

defendant is in fact a persistent felony offender, and (b) if so,

whether a persistent felony offender sentence should be imposed.

3. Order directing a hearing. An order directing a hearing to

determine whether the defendant should be sentenced as a persistent

felony offender must be filed with the clerk of the court and must

specify a date for the hearing not less than twenty days from the date

the order is filed. The court must annex to and file with the order a

statement setting forth the following:

(a) The dates and places of the previous convictions which render the

defendant a persistent felony offender as defined in subdivision one of

section 70.10 of the penal law; and

(b) The factors in the defendant's background and prior criminal

conduct which the court deems relevant for the purpose of sentencing the

defendant as a persistent felony offender.

4. Notice of hearing. Upon receipt of the order and statement of the

court, the clerk of the court must send a notice of hearing to the

defendant, his counsel and the district attorney. Such notice must

specify the time and place of the hearing and the fact that the purpose

of the hearing is to determine whether or not the defendant should be

sentenced as a persistent felony offender. Each notice required to be

sent hereunder must be accompanied by a copy of the statement of the

court.

5. Burden and standard of proof; evidence. Upon any hearing held

pursuant to this section the burden of proof is upon the people. A

finding that the defendant is a persistent felony offender, as defined

in subdivision one of section 70.10 of the penal law, must be based upon

proof beyond a reasonable doubt by evidence admissible under the rules

applicable to the trial of the issue of guilt. Matters pertaining to

the defendant's history and character and the nature and circumstances

of his criminal conduct may be established by any relevant evidence, not

legally privileged, regardless of admissibility under the exclusionary

rules of evidence, and the standard of proof with respect to such

matters shall be a preponderance of the evidence.

6. Constitutionality of prior convictions. A previous conviction in

this or any other jurisdiction which was obtained in violation of the

rights of the defendant under the applicable provisions of the

Constitution of the United States may not be counted in determining

whether the defendant is a persistent felony offender. The defendant

may, at any time during the course of the hearing hereunder controvert

an allegation with respect to such conviction in the statement of the

court on the grounds that the conviction was unconstitutionally

obtained. Failure to challenge the previous conviction in the manner

provided herein constitutes a waiver on the part of the defendant of any

allegation of unconstitutionality unless good cause be shown for such

failure to make timely challenge.

7. Preliminary examination. When the defendant appears for the

hearing the court must ask him whether he wishes to controvert any

allegation made in the statement prepared by the court, and whether he

wishes to present evidence on the issue of whether he is a persistent

felony offender or on the question of his background and criminal

conduct. If the defendant wishes to controvert any allegation in the

statement of the court, he must specify the particular allegation or

allegations he wishes to controvert. If he wishes to present evidence

in his own behalf, he must specify the nature of such evidence.

Uncontroverted allegations in the statement of the court are deemed

evidence in the record.

8. Cases where further hearing is not required. Where the

uncontroverted allegations in the statement of the court are sufficient

to support a finding that the defendant is a persistent felony offender

and the court is satisfied that (a) the uncontroverted allegations with

respect to the defendant's background and the nature of his prior

criminal conduct warrant sentencing the defendant as a persistent felony

offender, and (b) the defendant either has no relevant evidence to

present or the facts which could be established through the evidence

offered by the defendant would not affect the court's decision, the

court may enter a finding that the defendant is a persistent felony

offender and sentence him in accordance with the provisions of

subdivision two of section 70.10 of the penal law.

9. Cases where further hearing is required. Where the defendant

controverts an allegation in the statement of the court and the

uncontroverted allegations in such statement are not sufficient to

support a finding that the defendant is a persistent felony offender as

defined in subdivision one of section 70.10 of the penal law, or where

the uncontroverted allegations with respect to the defendant's history

and the nature of his prior criminal conduct do not warrant sentencing

him as a persistent felony offender, or where the defendant has offered

to present evidence to establish facts that would affect the court's

decision on the question of whether a persistent felony offender

sentence is warranted, the court may fix a date for a further hearing.

Such hearing shall be before the court without a jury and either party

may introduce evidence with respect to the controverted allegations or

any other matter relevant to the issue of whether or not the defendant

should be sentenced as a persistent felony offender. At the conclusion

of the hearing the court must make a finding as to whether or not the

defendant is a persistent felony offender and, upon a finding that he is

such, must then make such findings of fact as it deems relevant to the

question of whether a persistent felony offender sentence is warranted.

If the court both finds that the defendant is a persistent felony

offender and is of the opinion that a persistent felony offender

sentence is warranted, it may sentence the defendant in accordance with

the provisions of subdivision two of section 70.10 of the penal law.

10. Termination of hearing. At any time during the pendency of a

hearing pursuant to this section, the court may, in its discretion,

terminate the hearing without making any finding. In such case, unless

the court recommences the proceedings and makes the necessary findings,

the defendant may not be sentenced as a persistent felony offender.