The defendant is charged under two indictments with domestic violence charges involving two separate former intimate partners. Resolution of these indictments by plea requires an adjudication as to whether the defendant should be deemed a persistent violent felon. The People propose a global plea resolution that would sentence the defendant as a persistent violent felon. Relying upon the Supreme Court's decision in Erlinger v United States (602 US 821 [2024]), the defense has argued that the defendant cannot be rendered a persistent violent felony offender as the Court itself would be required to adjudicate five separate periods of tolling under the processes set out under New York CPL § 400.15. The defense argues that the Fifth and Sixth Amendments require a jury, not the Court, to resolve whether a period of incarceration tolls the 10-year lookback period in which a prior conviction may be used to enhance the defendant's sentences.

For the reasons set forth below, the Court finds that the Supreme Court's holding in Erlinger entitles the defendant to adjudication of any tolling issues by a jury.

The defendant is before the Court charged under Bronx County Indictments 74844-22 and 71122-24. Indictment 74844-22 alleges that the defendant was observed strangling his intimate partner on November 28, 2022. When a neighbor attempted to intervene, the defendant threw the neighbor down a stairwell, causing the neighbor to break his pelvis. The top count in this indictment is a charge of Attempted Assault in the First Degree, a Class C Violent felony.

The subsequent indictment, 71122-24, arises from conduct involving a different intimate partner with whom the defendant shares two children. Under this indictment, it is alleged that on Christmas Day, 2023, the defendant was present in the complainant's home in violation of a final order of protection following his 2021 conviction for Criminal Obstruction of Breathing. The [*2]complainant heard a loud noise from the bedroom where the defendant was alone behind closed doors. Later, the complainant discovered the television in that room shattered and lying on the floor. The second incident charged in this indictment arose on January 28, 2024. On that date, the complainant was home celebrating her birthday when the defendant arrived, and an argument ensued. The complainant testified before the Grand Jury that the defendant strangled her, punched her nose, and kicked her with Timberland boots while she lay on the floor. He later placed her in a chokehold and strangled her again. The complainant suffered injuries to her eye, nose, and neck. The most serious offense charged in this indictment is Burglary in the First Degree, a Class B violent felony.

As part of pre-trial plea negotiations, the People have extended an offer to the defendant with a proposed sentence of 18 years to life. The People's offer is premised on the defendant being adjudicated a persistent violent felony offender, often referred to as a "mandatory persistent." The requirements for a persistent violent felony offender sentence are found in Penal Law § 70.08. Under that statute, when someone is to be sentenced for a violent felony conviction after having been convicted of two prior violent felony offenses within the preceding 10 years, the sentence to be imposed must be an indeterminate term for which the maximum sentence is life imprisonment (id.) The 10-year period may be tolled by periods of incarceration served by the defendant (see Penal Law §§ 70.08[2], 70.04[1][v]).

The People have served and filed a persistent violent felony information under each indictment. Each information sets out two predicate violent felonies. According to each information, the defendant was previously convicted in 2005 of the Class B violent felony offense of Assault in the First Degree and in 2013 of the Class C violent felony offense of Criminal Possession of a Weapon in the Second Degree. Each information sets out the dates of conviction and sentence, the specific offenses, and five separate periods for tolling of the ten-year limitation. The tolling includes three separate periods of incarceration at Rikers Island and two periods in state prison at Ulster and Franklin Correctional facilities. Thus, the application of persistent violent felony offender sentencing to the defendant depends on tolling.

In addition to negotiating with the People, the defendant has, by letter brief dated November 7, 2024, requested a non-life disposition from the Court. To achieve such a resolution, the defendant proposes that the Court allow him to plead guilty to the top count of each indictment and be sentenced as a second violent felony offender on Indictment 74844-22 and a first felony offender on Indictment 71122-24. The defendant's request rests on his contention that the Court lacks authority to determine tolling under the statute. His arguments arise from the United States Supreme Court's recent decision in Erlinger v United States (602 US 821 [2024]), and several recent decisions by courts of concurrent jurisdiction applying Erlinger to New York State's enhanced sentencing laws and their tolling provisions (see e.g. People v Gardner, — Misc 3d —, 2024 WL 4863790, 2024 NY Slip Op 24294, at *1 [Sup Ct, Queens Co 2024]; People v Perry, 2024 WL 4847596, 2024 NY Slip Op 24293 at *1 [Sup Ct, Kings Co 2024]; People v Banks, — Misc 3d —, 218 NYS3d 519, 521, 2024 NY Slip Op 24241 [Sup Ct, NY Co 2024]; People v Lopez, — Misc 3d —, 216 NYS3d 518, 521, 2024 NY Slip Op 24207 [Sup Ct, NY Co 2024]).

In Erlinger v United States (602 US 821 [2024]), the United States Supreme Court addressed the interplay between the federal Armed Career Criminal Act ("ACCA") (see 18 USC [*3]924[e][1]) and the rule arising from Apprendi v New Jersey (530 US 466 [2000]) that any fact which would raise a defendant's sentence must be proven before a jury. Under the ACCA, inter alia, a defendant charged under the federal felon in possession law (see 18 USC § 922[g]) faces an enhanced sentence of 15 years to life, when the defendant has three prior convictions for "violent felon[ies]" or "serious drug offense[s]" that were "committed on occasions different from another." The federal District Court in Erlinger found this requirement satisfied and imposed an ACCA sentence, because when Mr. Erlinger was 18 years old, he had, within a span of days, burglarized a pizza shop, a sporting goods store, and two restaurants (602 US at 826). In applying the ACCA, the District Court rejected Mr. Erlinger's arguments that the burglaries were one extended criminal episode, and that the Fifth and Sixth Amendments required a jury to determine whether the burglaries occurred on separate occasions (id. at 827).

The Supreme Court reversed, concluding that the separate occasions inquiry had to be resolved by jury fact-finding beyond a reasonable doubt (id. at 849). In reaching that conclusion, the Supreme Court emphasized the importance of the jury fact-finding required by the Fifth and Sixth Amendments (id. at 823). The Supreme Court explained, "virtually any fact that increase[s] the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea)" (id. at 834 [internal quotation marks omitted; citations in the original]).

As part of its guidance in Erlinger, the Supreme Court engaged in an extended analysis of Almendarez-Torres v United States (523 US 224 [1998]). In Almendarez-Torres, the United States Supreme Court held that, in imposing an enhanced sentence for illegal reentry premised on reentry after deportation for an aggravated felony, a federal judge was permitted to find that the defendant had previously committed the requisite aggravated felony (Almendarez-Torres, 523 US at 247). In Erlinger, the Supreme Court explained that Almendarez-Torres "permitted a judge to undertake the job of finding the fact of a prior conviction-and that job alone," and that Almandarez-Torres was a "narrow exception" allowing for a judicial finding of no more than "what crime, with what elements, the defendant was convicted of" (602 US at 837).

The People contend that Erlinger does not upset New York's sentencing scheme and cite to courts of concurrent jurisdiction that have so held (see People v Rivera, — Misc 3d —, 221 NYS3d 894 [Sup Ct, NY Co 2024]; People v Harnett, Ind. No. 71922/22 [Sup Ct, Bx Co 2024]). To support their position, the People rely heavily on Almendarez-Torres and cases from the New York Court of Appeals that upheld the absence of juries from persistent violent felony offender determinations post-Apprendi (see People v Bell, 15 NY3d 935, 935-36 [2010]; cert denied sub nom Bell v New York, 563 US 979 [2011]; People v Porto, 16 NY3d 93, 102 [2010]; People v Leon, 10 NY3d 122, 126 [2008], cert denied sub nom Leon v New York, 554 US 926 [2008]). However, given the Supreme Court's caveat that Almendarez-Torres has limited applicability, this Court concludes that the Supreme Court's constitutional analysis requires a new examination of New York's post-Apprendi precedent (see People v Kin Kan, 8 NY2d 54, 59 [1991] ["All courts are, of course, bound by the United States Supreme Court's interpretations of Federal statutes and the Federal Constitution"]). Thus, this Court joins with those courts that have held that a tolling determination must be made by a jury (see e.g. Gardner, — Misc 3d —, 2024 WL 4863790, 2024 NY Slip Op 24294; Perry, 2024 WL 4847596, 2024 NY Slip Op 24293; Banks, — Misc 3d —, 218 NYS3d 519, 521, 2024 NY Slip Op 24241; Lopez, — Misc 3d —, 216 NYS3d 518, 521, 2024 NY Slip Op 24207).

Concluding that a jury must make the tolling determination aligns with the guidance [*4]enunciated in Erlinger. Where the People seek to rely upon tolling in support of a predicate or mandatory persistent adjudication, the People are required to plead in a predicate statement, "the date of commencement and the date of termination as well as the place of imprisonment for each period of incarceration to be used for tolling" (see CPL §§ 400.15[2]; 400.16). If the defendant controverts the statement, an enhanced sentence premised on tolling depends on the People proving the alleged periods of incarceration beyond a reasonable doubt (see CPL §§ 400.15[5], 7[a]; 400.16). In this instance, the factual determinations would require official business records from three places of imprisonment, spanning nearly twenty years. An adversarial proceeding in which the People must prove their allegations necessarily presupposes fact-finding, and here that fact-finding exceeds questions of "what crime, with what elements, the defendant was convicted of" (Erlinger, 602 US at 837).

While a tolling determination will in most instances be straightforward requiring no more than a document review and calculation of time, that factor alone cannot be a basis for disallowing Erlinger's guidance. For instance, in People v Chavira (No. 23CA0389, 2024 WL 4003558 [Colo. App. July 25, 2024]), the Colorado Court of Appeals confronted an issue analogous to the tolling issue facing New York courts post-Erlinger. Chavira involved a sentence for a vehicular homicide. The sentencing court enhanced the defendant's sentence based upon an indication in the defendant's probation report that he had likely been operating a motor vehicle at the time of the crime with a suspended license (Chavira, 2024 WL 4003558 at 1-2). The Colorado Court of Appeals noted that, while the defendant's probation report raised a fair inference that his license had been suspended since 2005, the sentencing judge could not make a finding of fact that this was so (id. at 4). Citing Erlinger, the Colorado Court of Appeals explained that such a finding, even if uncomplicated, was for a jury to make, because "[t]he constitutional right to a jury trial does not give way when the inquiry is straightforward" (id.)

Having determined that a jury must make the tolling determination, the Court must further decide whether it possesses the authority to preside over the jury trial necessitated by Erlinger. The Criminal Procedure Law expressly provides that tolling be determined with judge-made findings of fact (see CPL §§ 400.16[2], 400.15[7][a]). The only mechanism for a jury trial at this juncture, would be for the Court to invalidate the relevant provisions of the Criminal Procedure Law and then, by way of the Court's own inherent authority, craft a substitute procedure. Judiciary Law § 2-b provides that a court of record has the power to "devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it." The New York State Constitution permits the Legislature to delegate to the courts the authority to regulate court practice and procedure (NY Const art VI, § 30). While these statutory and constitutional grants provide courts with inherent authority to devise and implement their own procedures, courts cannot use this authority to override the voice of the Legislature. Here the legislature has set out an unambiguous procedure. Deviation and creation of a new process would impede upon the legislative branch of government and the separation of powers.

Where statutes stand silent, the Court of Appeals has approved judicial accommodations to procedure. In People v Ricardo B (73 NY2d 228 [1989]), the Court of Appeals approved of a judge-crafted dual jury procedure that permitted two defendants to be tried together for whom the evidence was inextricably intertwined but a problem under Bruton v United States (391 US 123, 124 [1968]) existed. In upholding this procedure, the Court emphasized that the dual jury procedure was consistent with the joinder provisions of the Criminal Procedure Law, which the [*5]Legislature had enacted (Ricardo B, 73 NY2d at 233). Similarly, in People v Wrotten (14 NY3d 33 [2009]), the Court of Appeals held that a trial court did not err by relying upon its inherent authority to permit an older, infirm complainant in testifying at trial via live two-way video transmission. In allowing the procedure, the Court noted that the Criminal Procedure Law had no provision addressing the use of video testimony for witnesses unable to travel due to such infirmities. Because the statutory law enacted by our Legislature "le[ft] courts' preexisting authority unaffected," the use of two-way video testimony "[wa]s presumably left to the trial court's discretion" (Wrotten, 14 NY3d at 38). Contrary to these instances, in this case there is a clear legislative directive. A hearing to determine tolling "must be before the court without jury" (CPL § 400.15[7][a]).

Other New York precedent supports this Court's finding that CPL §§ 400.15[5], 7[a], and 400.16 cannot be parsed to find a constitutionally acceptable alternative. When invalidating New York State's death penalty scheme, the Court of Appeals found the deadlock instruction contained in CPL § 400.27(10) unconstitutionally coercive (People v La Valle, 3 NY3d 88 [2004]). In striking down the instruction, the Court of Appeals explained that it could not itself insert a constitutional replacement. As the Court stated, "We cannot, however, ourselves craft a new instruction, because to do so would usurp legislative prerogative. We have the power to eliminate an unconstitutional sentencing procedure, but we do not have the power to fill the void with a different procedure" (La Valle, 3 NY3d at 131). As a result, the Court held that all death-noticed cases could only go forward as non-capital first degree murder prosecutions (id.) The Court of Appeals would later reaffirm its holding in LaValle and reiterate that the Court could not itself craft a constitutional replacement for the Legislature's coercive deadlock instruction(see People v Taylor 9 NY3d 129 [2007]).

For the foregoing reasons, the Court holds that, to accord with Erlinger and the Fifth and Sixth Amendments to the United States Constitution, tolling must be determined by a jury, not a judge. Because the Court itself cannot make the tolling finding, and the Court cannot usurp the Legislature's authority by crafting a constitutional jury procedure, no tolling determination can be made. Since tolling cannot be applied to the defendant, the 10-year lookback period applicable to his prior felony convictions cannot be extended.

As to indictment 74844-22, the defendant may be sentenced as a second violent felony offender, and as to Indictment 71122-25, the defendant may be sentenced as a first violent felony offender should he seek to enter pleas of guilt. The defendant may request from the Court on the top count of each indictment sentences consistent with the applicable statutory ranges (see CPL §§ 70.02[3][a], 70.04[3][b], 70.45)

This constitutes the decision and order of the Court.