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\n offender or a second felony drug offender.\n 1. Applicability. The provisions of this section govern the procedure\nthat must be followed in any case where it appears that a defendant who\nstands convicted of a felony has previously been convicted of a\npredicate felony and may be a second felony offender as defined in\nsection 70.06 of the penal law or a second felony drug offender as\ndefined in either paragraph (b) of subdivision one of section 70.70 of\nthe penal law, or paragraph (b) of subdivision one of section 70.71 of\nthe penal law.\n 2. Statement to be filed. When information available to the court or\nto the people prior to sentencing for a felony indicates that the\ndefendant may have previously been subjected to a predicate felony\nconviction, a statement must be filed by the prosecutor before sentence\nis imposed setting forth the date and place of each alleged predicate\nfelony conviction and whether the predicate felony conviction was a\nviolent felony as that term is defined in subdivision one of section\n70.02 of the penal law, or in any other jurisdiction of an offense which\nincludes all of the essential elements of any such felony for which a\nsentence to a term of imprisonment in excess of one year or death was\nauthorized and is authorized in this state regardless of whether such\nsentence was imposed. Where the provisions of subparagraph (v) of\nparagraph (b) of subdivision one of section 70.06 of the penal law\napply, such statement also shall set forth the date of commencement and\nthe date of termination as well as the state or local incarcerating\nagency for each period of incarceration to be used for tolling of the\nten year limitation set forth in subparagraph (iv) of paragraph (b) of\nsuch subdivision.\n 3. Preliminary examination. The defendant must be given a copy of such\nstatement and the court must ask him or her whether he or she wishes to\ncontrovert any allegation made therein. If the defendant wishes to\ncontrovert any allegation in the statement, he must specify the\nparticular allegation or allegations he wishes to controvert.\nUncontroverted allegations in the statement shall be deemed to have been\nadmitted by the defendant.\n 4. Cases where further hearing is not required. Where the\nuncontroverted allegations in the statement are sufficient to support a\nfinding that the defendant has been subjected to a predicate felony\nconviction the court must enter such finding, including a finding that\nthe predicate felony conviction was of a violent felony as that term is\ndefined in subdivision one of section 70.02 of the penal law, or in any\nother jurisdiction of an offense which includes all of the essential\nelements of any such felony for which a sentence to a term of\nimprisonment in excess of one year or death was authorized and is\nauthorized in this state regardless of whether such sentence was\nimposed, and when imposing sentence must sentence the defendant in\naccordance with the applicable provisions of section 70.06, 70.70 or\n70.71 of the penal law.\n 5. Cases where further hearing is required. Where the defendant\ncontroverts an allegation in the statement and the uncontroverted\nallegations in such statement are not sufficient to support a finding\nthat the defendant has been subjected to such a predicate felony\nconviction the court must proceed to hold a hearing.\n 6. Time for hearing. In any case where a copy of the statement was not\nreceived by the defendant at least two days prior to the preliminary\nexamination, the court must upon request of the defendant grant an\nadjournment of at least two days before proceeding with the hearing.\n 7. Manner of conducting hearing. (a) A hearing pursuant to this\nsection must be before the court without jury. The burden of proof is\nupon the people and a finding that the defendant has been subjected to\nsuch a predicate felony conviction must be based upon proof beyond a\nreasonable doubt by evidence admissible under the rules applicable to a\ntrial of the issue of guilt.\n (b) A previous conviction in this or any other jurisdiction which was\nobtained in violation of the rights of the defendant under the\napplicable provisions of the constitution of the United States must not\nbe counted in determining whether the defendant has been subjected to\nsuch a predicate felony conviction. The defendant may, at any time\nduring the course of the hearing hereunder controvert an allegation with\nrespect to such conviction in the statement on the grounds that the\nconviction was unconstitutionally obtained. Failure to challenge the\nprevious conviction in the manner provided herein constitutes a waiver\non the part of the defendant of any allegation of unconstitutionality\nunless good cause be shown for such failure to make timely challenge.\n (c) At the conclusion of the hearing the court must make a finding as\nto whether or not the defendant has been subjected to a predicate felony\nconviction, including a finding as to whether or not the predicate\nfelony conviction was of a violent felony as that term is defined in\nsubdivision one of section 70.02 of the penal law, or in any other\njurisdiction of an offense which includes all of the essential elements\nof any such felony for which a sentence to a term of imprisonment in\nexcess of one year or death was authorized and is authorized in this\nstate regardless of whether such sentence was imposed.\n 8. Subsequent use of predicate felony conviction finding. Where a\nfinding has been entered pursuant to this section, such finding shall be\nbinding upon that defendant in any future proceeding in which the issue\nmay arise.\n