Crimes - Sentence - Motion to Set Aside Sentence - Persistent Violent Felony Offender - Waiver of Constitutional Challenge

Center for Appellate Litigation (Ben Rutkin-Becker of counsel) for defendant.

Alvin Bragg, District Attorney (Kevin Ryan of counsel), for the People.

{**87 Misc 3d at 843}Defendant Billy Hernandez has moved for an order pursuant to Criminal Procedure Law § 440.20 to set aside his sentence of 16 years to life imprisonment.^[FN1] The motion is predicated on the United States Supreme Court's decision in Erlinger v United States (602 US 821 [2024]). On March 30, 2023, Mr. Hernandez pleaded guilty to one count of attempted assault in the first degree in violation of Penal Law §§ 110.00/120.10, one count of attempted assault in the second degree in violation of Penal Law §§ 110.00/120.05 (2), and one count of criminal possession of a weapon in the second degree in violation of Penal Law § 265.03 (3) to satisfy three indictments. This court sentenced him, as a mandatory persistent violent felony offender, to a sentence of 16 years to life in prison. Hernandez claims that the sentence is unlawful because the sentence was based on tolling calculations not determined by a jury.

Defendant Hernandez was arrested on March 29, 2022, and arraigned the next day on two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]) and one count of reckless endangerment in the first degree (Penal Law § 120.25). On July 8, 2022, the defendant was indicted on these charges (indictment No. 72799-22). On August 8, 2022, the defendant was arraigned on indictment No. 72799-22 and pleaded not guilty. The People had filed a statement of two or more predicate violent convictions on July 18, 2022.

On June 21, 2022, Hernandez was arrested again and arraigned the next day, June 22, 2022, on two separate, additional cases. He was arraigned on the following charges: one count of attempted murder in the second degree (Penal Law §§ 110.00/125.25 [1]), two counts of assault in the first degree (Penal Law § 120.10 [1], [2]), one count of robbery in the second degree (Penal Law § 160.10 [2] [a]), and one count of robbery in the third degree (Penal Law § 160.05). On June 24, 2022, [*2]Hernandez was indicted on these charges (indictment No. 72676-22), along with one additional count of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]). On July 21, 2022, the defendant was arraigned on this indictment and pleaded not guilty. At the arraignment, the People{**87 Misc 3d at 844} filed a predicate felony statement. On March 30, 2023, the defendant waived a third indictment and was arraigned on Superior Court information (SCI-71542-23), charging him with one count of attempted assault in the second degree (Penal Law §§ 110.00/120.05 [2]). During that arraignment, the People once again filed a predicate violent felony statement.

The predicate statement alleges that Hernandez had been convicted on January 9, 1992, of attempted robbery in the second degree (Penal Law §§ 110.00/160.10 [1]) and sentenced the same day, and that he was convicted on October 26, 1995, of assault in the first degree (Penal Law § 120.10 [1]) with sentencing on February 15, 1996. The statement noted that the 10-year period described in Penal Law § 70.06 (1) (b) (v) was extended due to the defendant's periods of incarceration (i.e., "tolling"). During the defendant's plea allocution to resolve all of his open cases on March 30, 2023, he was arraigned on the predicate felony statement. The clerk read the statement in its entirety and said to the defendant: "Mr. Hernandez, if you wish to dispute or challenge the charges made in the statement, you must do so now, if you do not, it will be deemed admitted by you. Take a moment, confer with your attorney and let me know when you're ready." (Exhibit D at 14.) After a brief pause, the following conversation occurred between the clerk and the defendant:

"THE CLERK: After conferring with your attorney, do you wish to dispute or challenge the charges made in the statement?

"THE DEFENDANT: No.

"THE CLERK: Do you wish to challenge the constitutionality of the convictions?

"THE DEFENDANT: No.

"THE CLERK: Do you admit that you are the person named in the statement?

"THE DEFENDANT: Yes." (Id. at 15.)

On May 11, 2023, Hernandez received the promised sentence of 16 years to life in prison.

In June of 2024, the United States Supreme Court handed down the decision in Erlinger v United States, holding that the defendant had the right under the Fifth and Sixth Amendments of the United States Constitution to have a jury decide whether or not his previous criminal acts qualified as predicate{**87 Misc 3d at 845} offenses under 18 USC § 924, also known as the Armed Career Criminal Act (ACCA). More specifically, the Court noted ACCA "imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions." (See id. at 825.) In Erlinger, the defendant argued that a unanimous jury was required to find that he had previously committed three qualifying felonies and on separate occasions, and that the jury must find this beyond a reasonable doubt. The Court explained that the rule established in Apprendi v New Jersey (530 US 466 [2000])—that any fact capable of increasing a defendant's penalty above the maximum must be found by a jury beyond a reasonable doubt—also applied to the facts of this defendant's prior convictions and on what occasions they occurred. (Id.) Furthermore, the Court clarified that the "narrow exception" to the prohibition on judicial fact-finding—established in Almendarez-Torres v United States ([*3]523 US 224 [1998]), and encompassing only "the fact of a prior conviction" itself—could not be expanded any further. (See Erlinger v United States, 602 US 821, 838 [2024], citing Alleyne v United States, 570 US 99, 111 [2013].)

Erlinger was a sweeping decision. Justice Gorsuch, writing for the majority, said the Court has repeatedly "cautioned" that trial and sentencing practices must remain within the guardrails of the Fifth and Sixth Amendments to the Constitution; that the principles of Apprendi v New Jersey were "firmly entrenched" in our jurisprudence; and that Almendarez-Torres is at best an outlier. (602 US at 832-833.) There is no doubt that the Court intended this opinion to apply broadly to almost any fact-based sentencing decision. In the months that have elapsed since Erlinger, multiple New York courts have found that the High Court's conclusion in Erlinger extends to any fact determinative of a defendant's adjudication as a predicate felon—that is, any fact other than the mere existence of one or more prior convictions. (See e.g. People v Sabater, 86 Misc 3d 181 [Sup Ct, NY County 2024, Mandelbaum, J.]; People v Lopez, 85 Misc 3d 171, 172 [Sup Ct, NY County 2024, Conviser, J.]; People v Banks, 85 Misc 3d 423, 425 [Sup Ct, NY County 2024, Mandelbaum, J.].) This view is far from unanimous though; as recently as May 28, 2025, the Queens County Supreme Court held that "[t]he facts necessary to determine tolling under the New York State persistent violent felony sentencing scheme continue to fall within the Almendarez-Torres exception to Apprendi{**87 Misc 3d at 846}." (People v Berry, 86 Misc 3d 1203[A], 2025 NY Slip Op 50859[U], *7 [Sup Ct, Queens County 2025, Yavinsky, J.].) The court in Berry drew a distinction between "facts concerning the manner in which the instant or underlying offense was committed" and other facts concerning the existence of a conviction, arguing the latter encompassed tolling determinations and fell under the Almendarez-Torres exception—even after Erlinger. (2025 NY Slip Op 50859[U], *6; see also People v Harnett, 2024 NY Slip Op 34684[U] [Sup Ct, Bronx County 2024, Fabrizio, J.].) The court in People v Berry noted that the Court of Appeals has repeatedly found the New York persistent felony scheme to be constitutional, and that the exception to Apprendi as found in Almendarez-Torres was applicable. However, that reasoning falls short when considering the analysis employed in Erlinger. Although the Supreme Court stopped just short of overruling Almendarez-Torres, it signaled its intention to treat that case as a lone exception to the general rule.^[FN2]

The reasoning in Sabater, Lopez, and Banks is more persuasive to this court,^[FN3] and as in those cases, the issue here is Erlinger's effect on the determination of tolling. The reasoning in Erlinger dictates that tolling determinations for the purpose of predicate felony adjudications must be made by a jury, not a judge. Accordingly, this court rejects the People's assertion that the holding in Erlinger "does not extend to the distinct inquiry under New York law about a defendant's prior periods of incarceration." (Affirmation in opp to defendant's mot at 20.)

The defendant argues that, but for the tolling determination made by the sentencing court, he would not have been subject{**87 Misc 3d at 847} to enhanced sentencing as a persistent violent felony offender. In considering the instant case, however, it is important to note that Lopez, Sabater, and Banks were in different procedural postures at the time the Erlinger challenge was brought. In Lopez, the defendant had pleaded guilty but had not yet been sentenced at the time Erlinger was decided. In Sabater, the defendant had been sentenced prior to Erlinger, but the People had conceded that "their previously filed predicate violent felony statement was facially insufficient." (Sabater, 86 Misc 3d at 182.) In Banks, the defendant was convicted at a trial but had not yet been sentenced when Erlinger was decided. Here, defendant Hernandez pleaded guilty, was adjudicated a predicate felon, and was sentenced, all over a year before the Supreme Court decided Erlinger.

Erlinger does not apply retroactively to sentences that have become final. (See People v Rodney, 85 Misc 3d 852 [Sup Ct, NY County 2024, Mandelbaum, J.].) As the defendant in the matter before the court notes, he has not yet perfected his appeal. For this reason, his conviction has not become final and applying Erlinger to his sentence is not a retroactive application. (See Griffith v Kentucky, 479 US 314 [1987].)

Yet Hernandez may not benefit from Erlinger, because at the time of his arraignment on the predicate felony statement, he waived his potential constitutional challenge to his adjudication as a predicate felon when he failed to raise any such challenge. A defendant can waive a constitutional right provided the record shows "an intentional relinquishment or abandonment of a known right or privilege." (People v Harris, 61 NY2d 9, 17 [1983], quoting Johnson v Zerbst, 304 US 458, 464 [1938].) The defendant argues that he did not intentionally and knowingly waive his rights to make this challenge because "a defendant cannot knowingly waive a right that state-statutory law declares nonexistent." (Reply mem of law at 2.) While the court agrees that the defendant could obviously not have waived his rights conferred by a later opinion, existing case law before Erlinger permitted him to request a jury trial to determine his predicate adjudication. Apprendi v New Jersey (530 US 466 [2000]), decided nearly a quarter century before Erlinger, held that, "[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.) Although it was Erlinger that explicitly held that the Almendarez-Torres{**87 Misc 3d at 848} exception was to be very narrowly construed, even with regard to recidivist laws, Apprendi established a defendant's right to demand that a jury decide any facts beside the existence of prior convictions. Indeed, as the defendant's own papers admit, "under Apprendi, the jury right applied to the tolling issue." (Mot to set aside sentence at 4.)

In the years since Apprendi, "state and lower federal courts have repeatedly wrestled with whether particular determinations constitute the mere exercise of traditional sentencing discretion within the range of statutorily prescribed sentences or, instead, findings of 'facts' that increase the penalty for a crime beyond the statutory maximum." (People v Banks, 85 Misc 3d 423, 425 [Sup Ct, NY County 2024, Mandelbaum, J.].) In this period of time, defendants made similar arguments to the one the defendant makes now. (See e.g. People v Miles, 5 Misc 3d 271, 272 [Sup Ct, NY County 2004, Kahn, J.] ["(D)efendant sought a ruling from this court that the mandatory persistent violent felony sentencing scheme of Penal Law § 70.08 is unconstitutional, and contending that it violates the notice and jury trial requirements of the Sixth and Fourteenth Amendments to the United States Constitution under Apprendi v New Jersey (530 US 466 [2000])"].) As the Court explained,

"With the passage of time, and accelerating in earnest in the 20th century, various governments in this country sought to experiment with new trial and sentencing practices. See Mistretta v. United States, 488 U.S. 361, 363-367 (1989); Williams v. New York, 337 U.S. 241, 247-248 (1949); see also P. Tappan, Sentencing Under the Model Penal Code, 23 Law & Contemp. Prob. 528, 529-532 (1958). But in case after case, this Court has cautioned that, while some experiments may be tolerable, all must remain within the Fifth and Sixth Amendments' guardrails." (Erlinger v United States, 602 US at 832.)

Defendant Hernandez was aware or should have been aware of the Apprendi jurisprudence and raised a constitutional challenge to the tolling determination made during his sentencing and his subsequent adjudication as a predicate felon. The People timely filed a predicate felony statement during each of the defendant's three arraignments on the two indictments and the SCI. The defendant and his attorney had several months before he was sentenced but after the predicate felony statement was filed to review it and raise any potential challenges.{**87 Misc 3d at 849} During his arraignment on March 30, 2023, on the predicate statement, the defendant was asked if he wished to "challenge the constitutionality of the convictions." (Exhibit D at 15.) Since he failed to do so during sentencing, he cannot now belatedly raise the constitutional challenge.

The conclusion this court has come to differs somewhat from the argument made by the People in their motion papers. The People argue the defendant should be procedurally barred from raising this challenge to his sentencing because he "not only failed to contest any of the factual allegations contained in the [predicate felony] statements . . . he affirmatively admitted that the factual allegations in the statements were true." (Reply mem of law at 13.) This argument misconstrues the nature of the defendant's challenge: a defendant may challenge the constitutionality of his adjudication as a predicate felon, asserting that this determination must be made by a jury, without disputing the accuracy of the factual allegations contained in the predicate statement. The People make much of the defendant's failure to dispute the factual allegations contained in the predicate statement, arguing that this omission is what distinguished the instant case from People v Lopez and People v Banks (85 Misc 3d 423 [Sup Ct, NY County 2024, Mandelbaum, J.]). However, neither opinion contains any discussion of whether the defendant admitted or did not admit to the factual allegations in the predicate statement.[*4]

Because the defendant failed to raise a constitutional challenge at his sentencing pursuant to Apprendi v New Jersey (530 US 466 [2000]), the motion to vacate the sentence and for resentencing is denied.