Crimes - Sentence - Defendant Sentenced as Second, Rather than Persistent, Violent Felony Offender Where Consideration of Earlier Conviction Would Require Judicial Fact-Finding in Violation of Defendant's Constitutional Rights under Erlinger

Michael J. Keane, District Attorney (Mitchell T. Schoellkopf of counsel), for the People.

Robert D. Steinhaus for defendant.

On October 12, 2022, defendant, wearing similar clothing to a suspect in a nearby armed robbery, was stopped by Buffalo police while riding a bicycle in a direction away from the nearby{**86 Misc 3d at 616} crime scene. While being frisked, a gun was visible in an open jacket pocket. The defendant was later found not to be a suspect and was never charged in that robbery. Defendant pleaded guilty on October 11, 2024, to one count of criminal possession of a weapon in the second degree, a class C violent felony, in violation of Penal Law § 265.03 (3).

The defendant has prior violent felony convictions which could qualify him as a persistent violent felony offender for purposes of sentencing. However, prior to defendant's guilty plea to the sole count of the indictment, and over the objection of the People, this court announced its intention to sentence the defendant as a second violent felony offender, due to concerns raised in People v Lopez (85 Misc 3d 171 [Sup Ct, NY County 2024]), which interprets the effect of the recent United States Supreme Court ruling in Erlinger v United States (602 US 821 [2024]) upon New York trial courts.

The People have now filed their CPL 400.16 statement,^[FN1] seeking a determination that the defendant has two predicate violent felony convictions and is subject to a finding by this court that he is a persistent violent felony offender pursuant to Penal Law § 70.08. This court continues to [*2]indicate that it cannot make such a finding given the ruling in Erlinger and its New York progeny to date.

Erlinger involved a federal prosecution under the Armed Career Criminal Act (18 USC § 924 [e] [1]), a sentencing enhancement statute whereunder certain defendants who have committed three prior violent felonies committed on separate occasions face enhanced sentences when convicted under 18 USC § 922 (g), a statute prohibiting the possession of firearms. The Court held that the Fifth and Sixth Amendment guarantees of the right to a trial by an impartial jury and due process of law apply to findings of fact for purposes of sentencing enhancements (see US Const 5th, 6th Amends).

The Court in Erlinger discusses the evolution of its holdings on this issue, which became firmly established in its seminal ruling in Apprendi v New Jersey (530 US 466, 490 [2000]). The{**86 Misc 3d at 617} Apprendi rule, as it has come to be known, states that constitutional due process requirements mandate that any factual determination (other than the fact of a prior conviction) that enhances a prison sentence beyond the prescribed statutory maximum for that offense must be made by a jury upon the basis of proof beyond a reasonable doubt (id. at 490). In so ruling, the Court in Apprendi noted the historic common-law foundation of the principles embodied in these rights.

In Apprendi, the Court dismissed the significance of its prior holding in Almendarez-Torres v United States (523 US 224 [1998]) where the Court applied an exception to its historic adherence to these constitutional doctrines in allowing a judge to make factual determinations (the fact of a predicate conviction and its elements) in order to find the defendant to be a habitual offender qualifying for an increased sentence. Although declining to expressly overrule Almendarez-Torres, the Court in Apprendi indicates that its holding in Almendarez-Torres was an aberration to its line of cases, stating that it was "at best an exceptional departure from the historic practice" (Apprendi at 487). Upon "reexamination," the Court confirmed its historic position that any fact "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (id. at 490). The Court in Apprendi summarized the limited effect of Almendarez-Torres by stating that "[w]ith that exception, we endorse the statement of the rule" that "[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed." (Apprendi at 490.)

In 2024, the Court in Erlinger reiterates and clarifies, in no uncertain terms, that the Apprendi rule applies to "[v]irtually 'any fact' that 'increase[s] the prescribed range of penalties to which a criminal defendant is exposed,' " and that such additional fact or facts, if not admitted in a guilty plea, must be found by a unanimous jury. (Erlinger at 834, quoting Apprendi at 490 [emphasis added].)

All of this, of course, is in square opposition to New York's CPL 400.16 (incorporating CPL 400.15 [5], [7]), which specifies that in the absence of admissions to the allegations set forth in a CPL 400.16 statement (the date and place of each alleged predicate violent felony conviction and the dates and places of{**86 Misc 3d at 618} imprisonment for each period of incarceration to toll the 10-year limitation),^[FN2] the court must conduct a hearing to determine the controverted allegations, [*3]and that any such determination must be made by a judge.

"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." (CPL 400.15 [7] [a], incorporated by CPL 400.16 [2] [emphasis added].)

Prior violent felony convictions become predicate convictions for persistent violent felony offender purposes only when they satisfy the rubric set forth under Penal Law § 70.08 (1) (b) (incorporating Penal Law § 70.04 [1] [b] [i], [ii], [iv], [v]): In determining whether a defendant qualifies for sentencing as a persistent violent felony offender under New York's statutory scheme, a court must determine that the defendant has been convicted of two or more violent felony offenses; that said convictions were sentenced prior to the commission of the current violent felony offense; that the prior violent felony offenses were sentenced not more than 10 years before the commission of the current violent felony; and that any time spent in custody, for anything, shall be excluded and added onto the 10-year period. The exclusion of time spent in custody requires a tolling determination. There are thus a number of factual findings required to be made.^[FN3]

The People argue that New York's Court of Appeals has routinely rejected previous attempts to rule CPL 400.16 unconstitutional after Apprendi, citing People v Prindle (29 NY3d 463, 466 [2017]) as authority. However, Prindle does not involve the persistent violent felony offender statute at issue (Penal Law § 70.08); it involves the persistent felony offender statute (Penal Law § 70.10) which requires proof of only the existence of predicate felony convictions. The People also rely on{**86 Misc 3d at 619} People v Leon (10 NY3d 122 [2008]). There the Court of Appeals refused to grant the defendant's Apprendi challenge finding that the "who, what, when, and where" of a prior conviction were so basic as to be "implicit" and wholly within the ability of a sentencing judge. (Id. at 126.)

The People insist that the 2024 decision in Erlinger brings nothing new to the analysis. This court disagrees. Lest one minimize the breadth of the factual determinations that Erlinger holds are solely within the province of a jury, the Court in Erlinger emphasizes that it acknowledges that in many cases, the inquiry may be straightforward. "Often, a defendant's past offenses will be different enough and separated by enough time and space that there is little question [that they were committed] on separate occasions . . . [b]ut none of that means a judge rather than a jury should make the call" (Erlinger at 842 [emphasis added]).

In People v Lopez, the earliest decided New York case published since Erlinger, the court stated that "after Erlinger, an inviolate line has been clearly drawn which does not permit courts to make these [enhancement] decisions" (Lopez at 180). Plainly, factors beyond the existence of a conviction itself necessarily include tolling factors for purposes of determining the 10-year look back period set forth under Penal Law § 70.08 (1) (b) incorporating Penal Law § 70.04 (1) (b). The [*4]court in Lopez held that it was required to sentence an erstwhile persistent felony offender as a first-time felon. (Id.)

Several other New York trial courts have wrestled with the Erlinger holding, and its application to New York's CPL 400.16. Several are procedurally divergent from the instant case as they involve a variety of post-sentence applications and issues of retroactivity (see e.g. People v Sabater, 86 Misc 3d 181 [Sup Ct, NY County 2024]; People v Rivera, 85 Misc 3d 1032 [Sup Ct, NY County 2024]; People v Rodney, 85 Misc 3d 852 [Sup Ct, NY County 2024]; People v Taylor, 86 Misc 3d 263 [Sup Ct, Nassau County 2024]), or are cases where the predicate convictions were admitted prior to or as part of a plea (see e.g. People v Frazier, 85 Misc 3d 482 [Sup Ct, Queens County 2024]), or are cases where no tolling is required because the time between the predicate violent felony conviction and the commission of the subject violent felony was less than 10 years (see People v McKinley, 85 Misc 3d 467 [Sup Ct, NY County 2024]).

Where the issue of tolling has been adjudicated as a part of a sentence pronounced subsequent to the decision in Erlinger,{**86 Misc 3d at 620} published decisions to date trend towards adherence to Erlinger.

In People v Banks (85 Misc 3d 423 [Sup Ct, NY County 2024]), the court noted that

"[i]n order to sentence defendant as a persistent violent felony offender, the court must determine not only the fact of his two prior convictions, including the jurisdictions in which the crimes occurred and their dates, but also—since, on their face, sentences on these [predicate] convictions were imposed 'more than ten years before commission of the felony of which the defendant presently stands convicted'—that defendant was incarcerated on the particular dates alleged by the People, so as to extend the 10-year period 'by a period or periods equal to the time served under such incarceration' " (id. at 430-431 [citations omitted], quoting Penal Law § 70.04 [1] [b] [iv], [v]).

In Banks, the trial court indicated that it was compelled to sentence the defendant as a first felony offender, notwithstanding his multiple prior violent felony convictions, because under Erlinger it could not make the factual determinations regarding tolling. (See also People v Perry, 85 Misc 3d 982 [Sup Ct, Kings County 2024]; People v Gardner, 86 Misc 3d 252 [Sup Ct, Queens County 2024]; but see People v Jackson, 86 Misc 3d 411 [Sup Ct, Queens County 2025].)

In following Erlinger, both Lopez and Banks explored the ostensibly consequential outcome of simply holding (bifurcated) jury trials on the issue of whether prior convictions fall within the strictures of New York's persistent violent felony offender statute. However, both courts reasoned that New York's Judiciary Law § 2-b (3)'s grant of inherent power to courts "to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it" (id.), is intended to be applied only when necessary to resolve extraordinary individual situations and that its application does not extend to creating a jury trial option for an entirely new class of cases. For this reason, both courts held that judicial attempts to use such "inherent powers" would be usurping the authority of the Legislature and would be otherwise unfeasible for a variety of other reasons. (See Lopez at 185; Banks at 440.) This is especially true where CPL 400.16 mandates that the predicate violent felony inquiry take place without a jury.{**86 Misc 3d at 621}

Given all of the above, this court believes the instant case presents a hybrid situation. [*5]Here, Erlinger applies to prohibit this court from engaging in the fact-finding (tolling) that would be necessary to qualify a prior violent felony conviction as a predicate violent felony conviction for purposes of the persistent violent felony offender analysis, but, at the same time, Erlinger does not apply, in that it does not prohibit this court from determining a predicate violent felony conviction for second violent felony offender status where a prior violent felony conviction, on its face, falls within the requisite 10-year period and does not require tolling.

In conclusion, while it can reasonably be argued that Erlinger's application should be limited to federal statutes, or that New York's appellate courts and statutory framework have historically precluded application of its principles, or that tolling determinations are simple math and do not require significant effort, this court is of the opinion that Erlinger does not hold that judges are somehow unequipped to determine additional sentencing enhancement factors. Rather, Erlinger has set forth a clear constitutional imperative that such determinations are of a magnitude that invoke the fundamental constitutional protections of due process and a right to a trial by an impartial jury. It is wholly due to the sheer strength of that imperative that this court believes appellate guidance or legislative action is required before dismissing Erlinger's applicability to New York trial courts.

Accordingly, this court is persuaded by the line of reasoning set forth in Lopez and Banks, which interpret Erlinger to compel sentencing this defendant as a second violent felony offender only, where the predicate violent felony conviction was sentenced on December 8, 2017, a date which is within the past 10 years (see People v McKinley), where the subject conviction was committed on October 12, 2022, and where consideration of the earlier 2002 conviction would require judicial fact-finding that has been deemed to be in violation of a defendant's constitutional rights under Erlinger. The defendant was sentenced as a second violent felony offender on this date.