§ 400.15 Procedure for determining whether defendant is a second
violent felony 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 violent felony offense as defined in
subdivision one of section 70.02 of the penal law has previously been
subjected to a predicate violent felony conviction as defined in
paragraph (b) of subdivision one of section 70.04 of the penal law and
may be a second violent felony offender.
2. Statement to be filed. When information available to the court or
to the people prior to sentencing for a violent felony offense indicates
that the defendant may have previously been subjected to a predicate
violent felony conviction, a statement must be filed by the prosecutor
before sentence is imposed setting forth the date and place of each
alleged predicate violent felony conviction. Where the provisions of
subparagraph (v) of paragraph (c) of subdivision one of section 70.04 of
the penal law apply, such statement also shall set forth the date of
commencement and the date of termination as well as the place of
imprisonment 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 whether he 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 violent
felony conviction the court must enter such finding and when imposing
sentence must sentence the defendant in accordance with the provisions
of section 70.04 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 a predicate violent 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 a predicate violent 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 a
predicate violent 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
violent felony conviction.
8. Subsequent use of predicate violent 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.
