The defendant moves to be sentenced as a first violent felony offender.

Relying on the Supreme Court's decision in Erlinger v United States, 602 US 821 (2024), the defendant argues that CPL 400.15 (7) (a) is unconstitutional because a jury, rather than a sentencing judge, must determine the defendant's predicate felony offender status and the tolling periods under Penal Law § 70.04 (1) (b) (v). In response, the People argue that Erlinger did not establish a new constitutional rule, and did not affect the constitutionality of New York's predicate felony offender sentencing scheme.

This Court has reviewed and considered the submitted papers and attached exhibits. For the reasons stated herein, the defendant's motion is DENIED.

The defendant was charged with burglary in the second degree, burglary in the third degree, criminal trespass in the second degree, and attempted petit larceny. It was alleged that on January 9, 2024, at approximately 8:15 p.m., the defendant entered a residential building, located at 426 Tompkins Avenue and attempted to forcibly gain entry to the building's package room by inserting an object into the keyhole of the door. It was further alleged that the defendant looked through mailboxes and took an elevator to each floor of the building looking for items to steal. An employee of Lifeline Security Company was reviewing live surveillance footage of the defendant and called 911. The defendant was subsequently arrested on the scene.

On April 1, 2025, following a jury trial, the defendant was found guilty of burglary in the second degree. The case was adjourned to May 16, 2025, for sentencing. The People subsequently filed a predicate statement pursuant to CPL 400. The People asserted that the defendant is a second violent felony offender due to a prior violent felony conviction for attempted robbery in the first degree.^[FN1] The defendant committed that prior violent felony offense on August 29, 2003, and sentence was imposed on March 11, 2004. The defendant's adjudication as a second violent felony offender subjects the defendant to an enhanced sentence for his present conviction.

Under New York's felony offender sentencing scheme, "a second violent felony offender is a person who stands convicted of a violent felony offense" (Penal Law § 70.02) "after having previously been subjected to a predicate violent felony conviction " (Penal Law § 70.04 [1] [a]). To determine whether a prior conviction is a predicate violent felony conviction, the sentence on the prior conviction must "have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted" (Penal Law § 70.04 [1] [b] [iv]). In calculating this ten year period, "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 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] [v]). CPL 400.15 outlines the procedures for determining whether a defendant is a second violent felony offender. The People must file a predicate statement detailing the date and place of each alleged predicate violent felony conviction. If the tolling provision pursuant to Penal Law § 70.04 (1) (b) (v) applies, the predicate statement must "set forth 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 of the ten year limitation" (CPL 400.15[2]). CPL 400.15 (7) (a) provides for a hearing and a finding, before a court, without a jury, where the People must prove beyond a reasonable doubt that the defendant has a predicate violent felony conviction (see also CPL 400.15 [7] [c] ["at the conclusion of the hearing the court must make a finding as to whether or not the defendant has been subjected to a predicate violent felony conviction"]).

Since the sentence for the defendant's prior violent felony conviction was imposed on March 11, 2004, a tolling finding under Penal Law § 70.04 (1) (b) (v) is necessary to render the defendant a second violent felony offender. Based on the People's calculations in the predicate statement, the People assert that the ten year period was sufficiently tolled and extended due to the defendant's incarceration for certain periods of time. The defendant argues that under Erlinger v United States, the procedure in CPL 400.15 (7) (a) is unconstitutional because the defendant has a Sixth Amendment right to have a jury determine the tolling periods under Penal Law §70.04 (1)(b)(v). Because a criminal court lacks the statutory authority to impanel a jury to decide the tolling periods, the defendant maintains that he should be sentenced as a first violent felony offender.

In Erlinger, the Supreme Court analyzed the enhanced federal sentencing scheme under the Armed Career Criminal Act (ACCA), which increased the maximum sentence imposed for an 18 USC § 922(g) conviction if a defendant had three prior convictions for "'violent felon[ies]' or 'serious drug offense[s]' that were 'committed on occasions different from one another'" (Erlinger at 834; quoting 18 USC § 924 [e][1]). The Supreme Court described the ACCA's occasions inquiry as a "fact-laden task" that required examination of whether the crimes were committed close in time, the proximity of their locations, and consideration of whether the offenses were "'similar or intertwined' in purpose and character" to trigger the ACCA's mandatory minimum, which enhanced the defendant's sentence (Erlinger at 834). It was under those circumstances that the Supreme Court reiterated that under the Sixth Amendment, "[v]irtually 'any fact' that 'increases 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.). The Supreme Court pointed out that its holding was based on a principle that had been established in Apprendi v New Jersey, 530 US 466, 490 (2000), which it described as "a by-now familiar reason: Only a jury may find "'facts that increase the prescribed range of penalties to which a criminal defendant is exposed'" (Erlinger at 833, quoting Apprendi at 490).

Apprendi involved a New Jersey statute that authorized an increase in the maximum prison sentence if a sentencing judge found by a preponderance of the evidence that a defendant's motivation for committing a crime was based on a bias. There, the Supreme Court determined that "[b]y its very terms, this statute mandates an examination of the defendant's state of mind - a concept known well to the criminal law as the defendant's mens rea" (Apprendi, at 493), and in doing so, 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). Two years earlier, the Supreme Court had decided Almendarez-Torres v United States, 523 US 224 (1998), which allowed a sentencing judge to impose an enhanced sentence based on the "'fact' of a prior conviction" (id. at 489). In Apprendi, the Supreme Court rejected the argument that the holding established in Almendarez-Torres applied to the New Jersey statute, noting that the sentencing procedures upheld in Almendarez-Torres did "'not relate to the commission of the offense' itself" (id. at 496).

Likewise, in Erlinger, the Supreme Court recognized the narrow exception to Apprendi, carved out in Almendarez-Torres, which permits a sentencing judge to find "the fact of a prior conviction" even though that fact increases a defendant's punishment (Erlinger at 837, 839). Yet, the Supreme Court expressly declined to disturb the holding in Almendarez-Torres, stating that the question about the ACCA's occasion inquiry fell outside of the Almendarez-Torres exception [*2](id. at 838-839). Notably, the Supreme Court emphasized that Almendarez-Torres did not need to be revisited to determine the matter before it because the sentencing court disregarded the constraints of Almendarez-Torres and "assume for itself the responsibility of deciding whether Mr. Erlinger's past offenses differed enough in time, location, character, and purpose to have transpired on different occasions" (id. at 840). The Supreme Court also appeared to have limited its holding to resolving the ACCA's occasions inquiry and the narrow facts presented. As framed by the Supreme Court: "While recognizing Mr. Erlinger was entitled to have a jury resolve ACCA's occasions inquiry unanimously and beyond a reasonable doubt, we decide no more than that" (id. at 835).

The Court of Appeals has consistently upheld the constitutionality of New York's predicate felony offender sentencing scheme under Apprendi and Almendarez-Torres challenges. For example, People v Leon, 10 NY3d 122, 126 (2008), rejected the claim that CPL 400.15 (7) (a) violated Apprendi, and held that the defendant was properly adjudicated a persistent violent felony offender because the finding of "who, what, when and where" of a prior conviction was so basic as to be "implicit" and within the ability of a sentencing judge. In People v Bell, 15 NY3d 935, 936 (2010), the defendant's challenge to the procedure under CPL 400.15, as well as the challenge to his adjudication as a persistent violent felony offender was barred by Almendarez-Torres, "which permits sentencing proceedings in which the fact of previous criminal convictions is found by a court sitting without a jury." Moreover, People v Prindle, 29 NY3d 463, 465 (2017), held that the construction of New York's persistent felony offender statute falls squarely within the exception afforded by Almendarez-Torres, and "thus outside the scope of the Apprendi rule because it exposes defendants to an enhanced sentencing range" based on prior felony convictions.

Following the Supreme Court's decision in Erlinger, several trial courts have analyzed and addressed the impact of Erlinger on New York's predicate felony offender sentencing scheme. This Court is persuaded by the line of reasoning by trial courts which have held that Erlinger does not prohibit a sentencing judge from making a factual finding regarding the tolling periods under Penal Law §70.04 (1)(b)(v). For example, in People v Jackson, 2025 NY Slip Op 25010, *6 (Sup Ct, Queens County 2025), the court held that Erlinger does not require a jury trial to determine dates of incarceration or release related to prior convictions, concluding 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." In People v Taylor, 2024 NY Slip Op 24308, *10 (Sup Ct, Nassau County 2024), the court held that "[a]s Erlinger is not new law, and does not speak to tolling, it does not overrule New York precedent applying Apprendi and its progeny," concluding that the judicial fact-finding of tolling pursuant to Penal Law § 70.04 (1) (b) (v) is not unconstitutional under Erlinger. Additionally, in People v Rivera, 2024 NY Slip Op 24278, *3 (Sup Ct, New York County 2024), the court held that Erlinger does not apply to the tolling provision under Penal Law §70.04 (1) (b) (v) because "there is no logical distinction - certainly not one that would trigger the constitutional right to a jury trial - between a judicial finding of the fact of a prior conviction, P.L. § 70.06(1)(b)(ii), which can be made by the judge without controversy - and the fact of a prior incarceration (and the relevant dates), which triggers the Tolling Provision."

Likewise, this Court concludes that Erlinger did not establish a new constitutional rule. Erlinger reiterated and applied the principles set by Apprendi, while maintaining the exception carved out by Almendarez-Torres. The determination of the tolling periods under Penal Law § [*3]70.04 (1) (b) (v) does not require a court to engage in the "fact-laden task," which was present in Erlinger. Nor does the statute require a court to consider whether the "offenses differed enough in time, location, character, and purpose to have transpired on different occasions" (see Erlinger at 834). Indeed, the statute does not require a court to consider criminal conduct or underlying facts of a prior conviction. Therefore, Erlinger does not suggest that the determination of the tolling periods under Penal Law § 70.04 (1) (b) (v) requires a finding by a jury. Furthermore, Erlinger did not specifically address New York's predicate felony offender sentencing scheme. As such, this Court is bound by the Court of Appeals precedent upholding the constitutionality of New York's predicate felony offender sentencing scheme, until the Court of Appeals rules otherwise.

In sum, Erlinger does not render CPL 400.15 (7) (a) unconstitutional. The facts that are necessary for the defendant's adjudication as a second violent felony offender: the prior violent felony conviction, the date on which sentence was imposed, and dates of incarceration for tolling purposes under Penal Law § 70.04 (1) (b) (v), can be properly made by a sentencing judge.

Accordingly, the defendant's motion to be sentenced as a first violent felony offender is DENIED.

This constitutes the Decision and Order of the Court.