Crimes - Sentence - Second Violent Felony Offender - Admission of Prior Conviction

Styles Salter, defendant pro se.

Michael J. Keane, District Attorney (Mindy VanLeuvan of counsel), for the People.

The defendant moves to set aside his sentence pursuant to CPL 440.20, claiming he was denied his right to a jury trial on the issue of whether he was a second violent felony offender. The People argue that the defendant does not have the right to{**88 Misc 3d at 191} a jury trial on this issue, and that the issue is unpreserved. The court agrees that the issue is unpreserved. The court makes its findings after considering the defendant's affidavit in support of motion to set aside sentence dated April 3, 2025, and the People's opposing affidavit dated June 12, 2025.

The defendant stands convicted after entering a plea of guilty to criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), under indictment 01016-2019, and criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]), criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), and resisting arrest (Penal Law § 205.30), under indictment 01270-2020. Before sentencing, the People filed with the sentencing court a statement pursuant to CPL 400.15 alleging that the defendant was a second violent felony offender. The defendant was sentenced as a second violent felony offender under Penal Law § 70.04.

The defendant now contends that his sentence should be set aside because he was denied a jury trial to determine if he was in fact a second violent felony offender, citing Erlinger v United States (602 US 821 [2024]). However, upon review of the transcript of the defendant's sentencing, attached to the defendant's moving papers as exhibit A, it is clear the defendant admitted he was convicted of a prior violent felony offense as alleged by the People in their statement pursuant to CPL 400.15. This admission was made after the defendant had consulted with counsel. Because the defendant did not contest his criminal history, the issue of whether he had a right to a jury trial to decide if he had in fact been convicted of the prior offense is unpreserved (People v Hernandez, 43 NY3d 591 [2025]).

Accordingly, the court declines to decide whether the defendant has a right to a jury trial to determine if he is a second violent felony offender, and the defendant's motion to set aside his sentence is denied.