Crimes - Sentence - Persistent Violent Felony Offender - Tolling Determination under Erlinger

Jodi Morales, Bronx, for defendant.

Darcel D. Clark, District Attorney, Bronx (Karl Miller of counsel), for the People.

On April 19, 2024, following a jury trial in Bronx County, defendant was convicted of manslaughter in the first degree under Penal Law § 125.20 (1), a class B violent felony offense, for stabbing Adam Saunders to death on February 18, 2021.{**88 Misc 3d at 184} Defendant's NYS Division of Criminal Justice Services fingerprint response record (rap sheet) reveals that he was previously convicted of violent felony offenses in 1999 and 2003. Specifically, on April 19, 1999, defendant pleaded guilty to robbery in the first degree, a class B violent felony offense in Kings County, and on October 20, 2003, defendant pleaded guilty to robbery in the first degree in Kings County.

On July 25, 2024, the trial judge in the instant matter,^[FN1] pursuant to New York Penal Law § 70.08, sentenced defendant as a persistent violent felony offender (PVFO), to an indeterminate term of imprisonment of 20 years to life imprisonment. Subsequently, on October 7, 2024, the trial court vacated its sentence and adjourned the matter for further consideration in light of the United States Supreme Court's decision in Erlinger v United States (602 US 821 [2024]). Erlinger held that a jury must determine beyond a reasonable doubt that a defendant's [*2]past offenses were committed on separate occasions for the purpose of a specific federal enhanced sentencing statute (id.).

The issue presented for the court is whether Erlinger is applicable to New York's persistent violent felony offender sentencing statute. Specifically, whether it is constitutionally permissible for the court, rather than a jury, to determine whether the defendant can be adjudicated a persistent violent felony offender.

New York Penal Law § 70.08 sets forth, in pertinent part, that "[a] persistent violent felony offender is a person who stands convicted of a violent felony offense . . . after having previously been subjected to two or more predicate violent felony convictions as defined in paragraph (b) of subdivision one of section 70.04."

Penal Law § 70.04 (1) (b) provides, in relevant part, that a predicate violent felony conviction is "a violent felony offense" for which a "sentence must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted" provided that

"any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded{**88 Misc 3d at 185} and such ten year period shall be extended by a period or periods equal to the time served under such incarceration" (Penal Law § 70.04 [1] [b] [i], [iv], [v] [emphasis added]).

The procedure for determining whether a defendant is a persistent violent felony offender is set forth in New York Criminal Procedure Law § 400.16, which references several sections in CPL 400.15 that pertain to sentencing a defendant as a second violent felony offender. Notably, regarding the manner in which a hearing is to be conducted to determine whether a defendant is PVFO, CPL 400.15 (7) (a) mandates that "[a] hearing pursuant to this section must be before the court without jury" (emphasis added).

New York's persistent violent felony offender statute does not run afoul of Erlinger v United States.

At the outset, it is essential to highlight the federal statute and factual issues that were involved in Erlinger's enhanced sentencing which, in this court's view, have no bearing to New York's persistent violent felony offender sentencing statute. In Erlinger, the United States Supreme Court addressed the federal Armed Career Criminal Act (ACCA) which exposed a defendant to enhanced sentencing if the defendant had three prior convictions for certain offenses that were "committed on occasions different from one another" (18 USC § 924 [e] [1]). In Erlinger, the defendant's three prior crimes were a series of burglaries that he committed "within a span of days" (id. at 821, 826). Erlinger claimed that his crimes did not occur on separate distinct occasions but instead arose from a "single criminal episode" (id. at 821, 872). The Court stated that to determine whether they were separate crimes under the ACCA, it was necessary to conduct "an assessment of the facts surrounding those offenses" including whether the three crimes were "similar or intertwined" in purpose and character and if they were "committed close in time" and in similar locations (id. at 827-828). The Court held that those factual issues regarding the ACCA's "occasions" inquiry which involved a determination of the defendant's intent and purpose had to be found by a jury, rather than a judge, beyond a [*3]reasonable doubt (id. at 833-835).

Prior to Erlinger, the U.S. Supreme Court directly addressed the subject of a defendant's constitutional right to a jury trial{**88 Misc 3d at 186} with respect to enhanced sentencing in the seminal case of Apprendi v New Jersey (530 US 466 [2000]), which is prominently cited in Erlinger. In Apprendi, the Court struck down a New Jersey statute that permitted a judge to impose a higher level of punishment if it found, by a preponderance of the evidence, that a defendant's motivation or purpose in unlawfully possessing a weapon was to intimidate the victim based upon a racial bias. In doing so, the U.S. Supreme Court 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).^[FN2]

As such, it logically flows that Erlinger merely applied Apprendi to a specific type of fact related to prior convictions and did not establish a new constitutional rule. The underlying constitutional principle at play in Erlinger, and invoked by the defendant here, was established in 2000, when Apprendi was decided, and Erlinger did not cover any new ground. Indeed, the Court in Erlinger stated (at 835) that "this case is as nearly on all fours with Apprendi . . . as any we might imagine" (People v Rivera, 85 Misc 3d 1032 [Sup Ct, NY County 2024]; see also People v Taylor, 86 Misc 3d 263 [Sup Ct, Nassau County 2024] [the decision in Erlinger reiterated the Apprendi doctrine]).

Importantly, it is critical to recognize that in both Erlinger and Apprendi, the context in those cases dealt with factually analyzing the nature of a defendant's motivation and purpose in committing the underlying prior crimes—specifically, in Erlinger, whether the crimes were committed during one criminal episode or on different occasions (Erlinger at 841 ["a qualitative assessment about 'the character and relationship' of the offenses . . . (and) whether the (prior) crimes shared 'a common scheme or purpose' "]), and in Apprendi—whether the defendant committed the crime with racial bias.{**88 Misc 3d at 187}

Here, in contrast to the nuanced assessments that were required in applying the federal statutes in Erlinger and Apprendi, no such analysis is needed with respect to New York's persistent violent felony offender statute. As described above, Erlinger and Apprendi both required a "qualitative" analysis requiring subjective discretionary determinations, whereas New York's 10 year look back period and tolling provisions under Penal Law § 70.04 (1) (b) (iv) and (v) only necessitate a mechanical "quantitative" finding based upon an objective numerical calculation which is governed by applying elementary arithmetic to official certified state government records. Further, as to the provision in Penal Law § 70.04 (1) (b) (ii), the "[s]entence upon [a] prior conviction must have been imposed before commission of the present felony," it merely entails inspecting certified certificates of dispositions which unambiguously indicate the dates of defendant's prior convictions.[*4]

Moreover, the Supreme Court in Erlinger acknowledged that its holding was narrow in scope with the following language: "While recognizing [petitioner] was entitled to have a jury resolve ACCA's occasions inquiry unanimously and beyond a reasonable doubt, we decide no more than that" (Erlinger at 835 [emphasis added]). Thus, it is apparent that the decision in Erlinger applied to a specific finding under a particular federal statute that has no relevance to the instant matter (see also State v Porter, 2024 WL 4052187, *2, 2024 Ariz App Unpub LEXIS 780, *5 [Sept. 5, 2024, No. 1 CA-CR 23-0157 (unreported)] [construing Erlinger to hold only that the defendant "was entitled to have a jury resolve ACCA's occasions inquiry unanimously and beyond a reasonable doubt, (but) . . . no more than that"]; State v Anderson, 31 Wash App 2d 668, 681, 552 P3d 803, 811 [2024] ["Erlinger's holding is limited to resolving ACCA's occasions inquiry"]; People v Lark, 2024 WL 4523469, *11, 2024 Cal App Unpub LEXIS 6600, *29-32 [Oct. 18, 2024, C097702]).

In New York, although there is no appellate authority which directly addresses Erlinger, after Apprendi, the New York Court of Appeals has confronted and rejected constitutional challenges to its persistent violent felony offender statutory scheme (see People v Bell, 15 NY3d 935 [2010]; People v Leon, 10 NY3d 122 [2008]).

Similarly, the Appellate Divisions in New York on multiple occasions have rejected Apprendi challenges to the PVFO statute (see People v Johnson, 24 AD3d 967 [3d Dept 2005]; People {**88 Misc 3d at 188}v Highsmith, 21 AD3d 1037 [2d Dept 2005]; People v Regan, 11 AD3d 640 [2d Dept 2004]; People v Rice, 285 AD2d 617 [2d Dept 2001]).

Significantly, on the federal level, particularly, in Washington v Graham (2007 WL 3197335, 2007 US Dist LEXIS 79598 [ED NY, Oct. 24, 2007, CV-07-1706 (BMC)(LB)], affd 355 Fed Appx 543 [2d Cir 2009]) the court held that tolling is part of the "fact of conviction," which falls under the exception of Apprendi. The court reasoned that calculation of the tolling period is

"readily ascertainable as a matter of public record in all but the unusual case. The dates and amount of time served are as or more closely related to the conviction [itself] than any of the other facts surrounding it . . . If the exception is to include any facts beyond the public record of conviction itself, the amount of time served would remain within the scope of permissible determinations by the sentencing judge" (2007 WL 3197335, *5-6, 2007 US Dist LEXIS 79598, *14-15 [emphasis added]; see also Kelly v Lee, 2014 WL 4699952, 2014 US Dist LEXIS 132972 [ED NY, Sept. 22, 2014, No. 11-CV-3903(CBA)] [no clearly established federal law requires that a jury make the tolling calculation]; Cruz v Ercole, 2010 WL 4860668, 2010 US Dist LEXIS 125389 [SD NY, Nov. 19, 2010, 07 Civ 9868 (RJH)(DF)]).

Finally, when determining the dates of a defendant's prior felony convictions and calculating tolling, inasmuch as both a judge and jury would be bound by the same objective contents of the official certified New York State records, requiring only a jury to perform the ministerial task of reviewing these documents would not only be an enormous waste of resources, it would not in any way assure a more just outcome (see People v Rivera).

Based upon all the forgoing, this court declines to expand the limited holding in Erlinger and firmly agrees with other New York trial courts that the dates of defendant's prior convictions and the sentences imposed as well as the rote task of mathematical calculations required for tolling can be determined by a judge beyond a reasonable doubt, with proof of certified official records, rather than by a unanimous jury (see People v Berry, 86 Misc 3d 1203[A], 2025 NY Slip Op 50859[U] [Sup Ct, Queens County 2025]; People v Jackson, 86 Misc 3d 411 [Sup Ct, Queens County 2025]; People v Taylor, 86 Misc 3d{**88 Misc 3d at 189} 263; People Rivera, 85 Misc 3d 1032; People v McKinley, 85 Misc 3d 467 [Sup Ct, NY County 2024]; People v Harnett, 2024 NY Slip Op 34684[U] [Sup Ct, Bronx County 2024]).

Wherefore, this court will conduct a hearing pursuant to the procedure set forth in CPL 400.16 to determine whether under Penal Law § 70.08, defendant is a mandatory persistent violent felony [*5]offender and thereafter, sentence him accordingly.