Procedure for determining whether defendant should be sentenced as a persistent felony offender

§ 400.20 Procedure for determining whether defendant should be\n sentenced as a persistent felony offender.\n 1. Applicability. The provisions of this section govern the\nprocedure that must be followed in order to impose the persistent felony\noffender sentence authorized by subdivision two of section 70.10 of the\npenal law. Such sentence may not be imposed unless, based upon evidence\nin the record of a hearing held pursuant to this section, the court (a)\nhas found that the defendant is a persistent felony offender as defined\nin subdivision one of section 70.10 of the penal law, and (b) is of the\nopinion that the history and character of the defendant and the nature\nand circumstances of his criminal conduct are such that extended\nincarceration and lifetime supervision of the defendant are warranted to\nbest serve the public interest.\n 2. Authorization for hearing. When information available to the\ncourt prior to sentencing indicates that the defendant is a persistent\nfelony offender, and when, in the opinion of the court, the available\ninformation shows that a persistent felony offender sentence may be\nwarranted, the court may order a hearing to determine (a) whether the\ndefendant is in fact a persistent felony offender, and (b) if so,\nwhether a persistent felony offender sentence should be imposed.\n 3. Order directing a hearing. An order directing a hearing to\ndetermine whether the defendant should be sentenced as a persistent\nfelony offender must be filed with the clerk of the court and must\nspecify a date for the hearing not less than twenty days from the date\nthe order is filed. The court must annex to and file with the order a\nstatement setting forth the following:\n (a) The dates and places of the previous convictions which render the\ndefendant a persistent felony offender as defined in subdivision one of\nsection 70.10 of the penal law; and\n (b) The factors in the defendant's background and prior criminal\nconduct which the court deems relevant for the purpose of sentencing the\ndefendant as a persistent felony offender.\n 4. Notice of hearing. Upon receipt of the order and statement of the\ncourt, the clerk of the court must send a notice of hearing to the\ndefendant, his counsel and the district attorney. Such notice must\nspecify the time and place of the hearing and the fact that the purpose\nof the hearing is to determine whether or not the defendant should be\nsentenced as a persistent felony offender. Each notice required to be\nsent hereunder must be accompanied by a copy of the statement of the\ncourt.\n 5. Burden and standard of proof; evidence. Upon any hearing held\npursuant to this section the burden of proof is upon the people. A\nfinding that the defendant is a persistent felony offender, as defined\nin subdivision one of section 70.10 of the penal law, must be based upon\nproof beyond a reasonable doubt by evidence admissible under the rules\napplicable to the trial of the issue of guilt. Matters pertaining to\nthe defendant's history and character and the nature and circumstances\nof his criminal conduct may be established by any relevant evidence, not\nlegally privileged, regardless of admissibility under the exclusionary\nrules of evidence, and the standard of proof with respect to such\nmatters shall be a preponderance of the evidence.\n 6. Constitutionality of prior convictions. A previous conviction in\nthis or any other jurisdiction which was obtained in violation of the\nrights of the defendant under the applicable provisions of the\nConstitution of the United States may not be counted in determining\nwhether the defendant is a persistent felony offender. The defendant\nmay, at any time during the course of the hearing hereunder controvert\nan allegation with respect to such conviction in the statement of the\ncourt on the grounds that the conviction was unconstitutionally\nobtained. Failure to challenge the previous conviction in the manner\nprovided herein constitutes a waiver on the part of the defendant of any\nallegation of unconstitutionality unless good cause be shown for such\nfailure to make timely challenge.\n 7. Preliminary examination. When the defendant appears for the\nhearing the court must ask him whether he wishes to controvert any\nallegation made in the statement prepared by the court, and whether he\nwishes to present evidence on the issue of whether he is a persistent\nfelony offender or on the question of his background and criminal\nconduct. If the defendant wishes to controvert any allegation in the\nstatement of the court, he must specify the particular allegation or\nallegations he wishes to controvert. If he wishes to present evidence\nin his own behalf, he must specify the nature of such evidence.\nUncontroverted allegations in the statement of the court are deemed\nevidence in the record.\n 8. Cases where further hearing is not required. Where the\nuncontroverted allegations in the statement of the court are sufficient\nto support a finding that the defendant is a persistent felony offender\nand the court is satisfied that (a) the uncontroverted allegations with\nrespect to the defendant's background and the nature of his prior\ncriminal conduct warrant sentencing the defendant as a persistent felony\noffender, and (b) the defendant either has no relevant evidence to\npresent or the facts which could be established through the evidence\noffered by the defendant would not affect the court's decision, the\ncourt may enter a finding that the defendant is a persistent felony\noffender and sentence him in accordance with the provisions of\nsubdivision two of section 70.10 of the penal law.\n 9. Cases where further hearing is required. Where the defendant\ncontroverts an allegation in the statement of the court and the\nuncontroverted allegations in such statement are not sufficient to\nsupport a finding that the defendant is a persistent felony offender as\ndefined in subdivision one of section 70.10 of the penal law, or where\nthe uncontroverted allegations with respect to the defendant's history\nand the nature of his prior criminal conduct do not warrant sentencing\nhim as a persistent felony offender, or where the defendant has offered\nto present evidence to establish facts that would affect the court's\ndecision on the question of whether a persistent felony offender\nsentence is warranted, the court may fix a date for a further hearing.\nSuch hearing shall be before the court without a jury and either party\nmay introduce evidence with respect to the controverted allegations or\nany other matter relevant to the issue of whether or not the defendant\nshould be sentenced as a persistent felony offender. At the conclusion\nof the hearing the court must make a finding as to whether or not the\ndefendant is a persistent felony offender and, upon a finding that he is\nsuch, must then make such findings of fact as it deems relevant to the\nquestion of whether a persistent felony offender sentence is warranted.\nIf the court both finds that the defendant is a persistent felony\noffender and is of the opinion that a persistent felony offender\nsentence is warranted, it may sentence the defendant in accordance with\nthe provisions of subdivision two of section 70.10 of the penal law.\n 10. Termination of hearing. At any time during the pendency of a\nhearing pursuant to this section, the court may, in its discretion,\nterminate the hearing without making any finding. In such case, unless\nthe court recommences the proceedings and makes the necessary findings,\nthe defendant may not be sentenced as a persistent felony offender.\n