400.40 – Procedure for Determining Prior Convictions for the Purpose of Sentence in Certain Cases.

§ 400.40  Procedure for determining prior convictions for the purpose of
           sentence in certain cases.
1.   Applicability.  Where a conviction is entered for an unclassified
  misdemeanor or for a traffic  infraction  and  the  authorized  sentence
  depends upon whether the defendant has a previous judgment of conviction
  for an offense, or where a conviction is entered for a violation defined
  outside  the  penal law and the amount of the fine authorized by the law
  defining such  violation  depends  upon  whether  the  defendant  has  a
  previous judgment of conviction for an offense, such issue is determined
  as provided in this section.
2.    Statement  to be filed.   If it appears that the defendant has a
  previous judgment of conviction and if the court is required, or in  its
  discretion desires, to impose a sentence that would not be authorized in
  the  absence  of such previous judgment, a statement must be filed after
  conviction and before sentence setting forth the date and place  of  the
  previous  judgment  or judgments and the court must conduct a hearing to
  determine whether the defendant is the  same  person  mentioned  in  the
  record  of  such  judgment or judgments.  In any case where an increased
  sentence is mandatory, the statement may be filed by the court or by the
  prosecutor.  In any case where an increased sentence  is  discretionary,
  the statement may be filed only by the court.
3.    Preliminary examination.   The defendant must be given a copy of
  such statement and the court must ask him whether he  admits  or  denies
  such  prior  judgment or judgments.  If the defendant denies the same or
  remains mute, the court may proceed with  the  hearing  and,  where  the
  increased sentence is mandatory, it must impose such.
4.    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.
5.   Manner of conducting hearing.  A hearing pursuant to this section
  must be before the court without a jury.  The burden of  proof  is  upon
  the  people  and  a finding that the defendant has been convicted of any
  offense alleged in the statement must  be  based  upon  proof  beyond  a
  reasonable  doubt  by  evidence admissible under the rules applicable to
  trial of the issue of guilt.