N.Y. Criminal Procedure Law § 400.21: Procedure for determining whether defendant is a second felony offender or a second felony drug offender

§ 400.21 Procedure for determining whether defendant is a second felony

offender or a second felony drug offender.

1. Applicability. The provisions of this section govern the procedure

that must be followed in any case where it appears that a defendant who

stands convicted of a felony has previously been convicted of a

predicate felony and may be a second felony offender as defined in

section 70.06 of the penal law or a second felony drug offender as

defined in either paragraph (b) of subdivision one of section 70.70 of

the penal law, or paragraph (b) of subdivision one of section 70.71 of

the penal law.

2. Statement to be filed. When information available to the court or

to the people prior to sentencing for a felony indicates that the

defendant may have previously been subjected to a predicate felony

conviction, a statement must be filed by the prosecutor before sentence

is imposed setting forth the date and place of each alleged predicate

felony conviction and whether the predicate felony conviction was a

violent felony as that term is defined in subdivision one of section

70.02 of the penal law, or in any other jurisdiction of an offense which

includes all of the essential elements of any such felony for which a

sentence to a term of imprisonment in excess of one year or death was

authorized and is authorized in this state regardless of whether such

sentence was imposed. Where the provisions of subparagraph (v) of

paragraph (b) of subdivision one of section 70.06 of the penal law

apply, such statement also shall set forth the date of commencement and

the date of termination as well as the state or local incarcerating

agency for each period of incarceration to be used for tolling of the

ten year limitation set forth in subparagraph (iv) of paragraph (b) of

such subdivision.

3. Preliminary examination. The defendant must be given a copy of such

statement and the court must ask him or her whether he or she wishes to

controvert any allegation made therein. If the defendant wishes to

controvert any allegation in the statement, he must specify the

particular allegation or allegations he wishes to controvert.

Uncontroverted allegations in the statement shall be deemed to have been

admitted by the defendant.

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

uncontroverted allegations in the statement are sufficient to support a

finding that the defendant has been subjected to a predicate felony

conviction the court must enter such finding, including a finding that

the predicate felony conviction was of a violent felony as that term is

defined in subdivision one of section 70.02 of the penal law, or in any

other jurisdiction of an offense which includes all of the essential

elements of any such felony for which a sentence to a term of

imprisonment in excess of one year or death was authorized and is

authorized in this state regardless of whether such sentence was

imposed, and when imposing sentence must sentence the defendant in

accordance with the applicable provisions of section 70.06, 70.70 or

70.71 of the penal law.

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

controverts an allegation in the statement and the uncontroverted

allegations in such statement are not sufficient to support a finding

that the defendant has been subjected to such a predicate felony

conviction the court must proceed to hold a hearing.

6. Time for hearing. In any case where a copy of the statement was not

received by the defendant at least two days prior to the preliminary

examination, the court must upon request of the defendant grant an

adjournment of at least two days before proceeding with the hearing.

7. Manner of conducting hearing. (a) A hearing pursuant to this

section must be before the court without jury. The burden of proof is

upon the people and a finding that the defendant has been subjected to

such a predicate felony conviction must be based upon proof beyond a

reasonable doubt by evidence admissible under the rules applicable to a

trial of the issue of guilt.

(b) 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 must not

be counted in determining whether the defendant has been subjected to

such a predicate felony conviction. The defendant may, at any time

during the course of the hearing hereunder controvert an allegation with

respect to such conviction in the statement 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.

(c) At the conclusion of the hearing the court must make a finding as

to whether or not the defendant has been subjected to a predicate felony

conviction, including a finding as to whether or not the predicate

felony conviction was of a violent felony as that term is defined in

subdivision one of section 70.02 of the penal law, or in any other

jurisdiction of an offense which includes all of the essential elements

of any such felony for which a sentence to a term of imprisonment in

excess of one year or death was authorized and is authorized in this

state regardless of whether such sentence was imposed.

8. Subsequent use of predicate felony conviction finding. Where a

finding has been entered pursuant to this section, such finding shall be

binding upon that defendant in any future proceeding in which the issue

may arise.