Summary of the Court's Decision: The defendant's motion to preclude the Court from adjudicating him as a Second Felony Offender is GRANTED.

By motion dated May 20, 2025, the defendant moves for the Court to sentence the defendant as a first-time felony offender. He asks the Court to reject the People's predicate statement, pursuant to Erlinger v. United States, (602 U.S. 821 [2024]). The People submitted a response in opposition dated July 29, 2025, arguing Erlinger doesn't apply. The defendant submitted a reply dated August 26, 2025, along with the minutes of the plea and sentencing for the defendant's underlying felony conviction on July 7, 2016.

On April 29, 2022, the defendant was arraigned on a criminal court complaint and charged with Criminal Possession of a Weapon in the Second Degree and other related charges. On February 23, 2023, the People filed a notice of voted indictment and on March 27, 2023, defendant was arraigned on Indictment No. 70739/23 ^[FN1] charging him with Criminal Possession of a Weapon in the Second Degree and other related charges. On August 1, 2024, the People moved to dismiss both counts of Criminal Possession of a Weapon in the Second Degree and one count of Criminal Possession of a Weapon in the Third Degree for facial insufficiency.^[FN2] The People re-represented the charges to a grand jury and filed a new indictment on October 1, 2024. [*2]On October 24, 2024, the motion to consolidate both indictments was granted.

The People filed a predicate statement pursuant to C.P.L. § 400.15 of defendant's July 16, 2016 conviction for P.L. § 160.15(4) in Albany County under Indictment Number 16-5380 and sentence to seven to fourteen years of incarceration, seeking the Court to treat the defendant as a second violent predicate offender.

Since the inception of this case, the defendant has been trying to negotiate with the People for a non-jail disposition, a disposition involving drug treatment or a disposition to the top count with the jail minimum. Defendant has contended that there are exceptional circumstances that warrant a departure from the People's usual plea structure. He has argued that he was wrongly convicted of Murder along with Robbery, that the Murder conviction was vacated and that he improperly endured a sentence of approximately nineteen years in prison. All of which has been substantiated ^[FN3] and conceded by the People. He further argues that this wrongful conviction and incarceration led to his addiction, his trouble readjusting to society and him associating with the wrong people, which he alleges led to the current charges.

On March 19, 2024, after a brief bench warrant, defendant was remanded. He remained in custody between March 19 and September 4, 2024 and participated in a jail detoxification and treatment program. In September of 2024, upon his release, defendant engaged voluntarily in an intensive out-patient program. He is still enrolled in the treatment program and doing well.

On June 5 and June 6, 2024, this Court conducted a Dunaway, Mapp and Huntley hearing. By written decision dated July 8, 2024, the Court denied defendant's motion to suppress the physical evidence and defendant's videotaped statement and granted suppression of the defendant's on-scene statement.

On May 20, 2025, the defendant filed the instant motion requesting the Court consider the defendant a first-time felony offender. The defendant contends that the Fifth and Sixth Amendments to the United States Constitution prohibit a sentencing court from determining facts that would lead to an enhancement of the defendant's sentence. He argues that defendant's last conviction was more than ten years ago, a tolling calculation would be required to extend this ten-year period, and that any such tolling finding must be resolved by a jury. He further argues that since New York Criminal Procedure Law does not provide a mechanism to empanel a jury for that purpose, the Court must sentence the defendant as a first-time offender.

The People submitted a written response opposing the defendant's motion. They assert that the defendant qualifies as a second violent felony offender since he entered a plea of guilty to Robbery in the First Degree, pursuant to P.L. § 160.15(04), on July 16, 2016. While they concede that the Robbery "occurred on September 8, 1997," and he was sentenced to a term of seven to fourteen years of incarceration on that same day, time he had previously served. They also concede that his Murder in the Second Degree conviction, pursuant to P.L. 125.25 was vacated. They assert that the Court is limited to considering the date of the Robbery plea and sentence in 2016 which is within ten years of the current offense which is alleged to have been committed in 2022.

In 1998, after trial, the defendant was found guilty of Depraved Indifference Murder pursuant to Penal Law § 125.25(2) and other related charges. On January 7, 1999, the Court sentenced the Defendant to twenty-five years to life on the Murder charge, and twelve and a half years on the Robbery.

On September 3, 2014, another individual, Jeffrey Conrad confessed to the murder. Based on the new evidence, defendant filed a motion to vacate his conviction, pursuant to C.P.L. § 440.10. On July 7, 2016, after an extensive investigation by the police department and the Albany County District Attorney's office, the Albany District Attorney consented to vacatur of the conviction based on the discovery of new evidence. Judge Breslin granted the motion to vacate the defendant's conviction and immediately remanded the defendant for a second call.

Judge Breslin then offered the defendant a chance to plead guilty to a single count of first-degree Robbery and promised him an indeterminate sentence of imprisonment of seven to fourteen years, acknowledging that the defendant had already served more than sixteen years in jail. On the same day, the defendant entered a plea of guilty to Robbery in the first degree in violation of P.L. § 160.15(4), a class B violent felony. During the plea allocution, defendant admitted that on or about October 4, 1996, at 195 Clinton Avenue, basement apartment, in the City of Albany, the defendant forcibly stole property in the course of the commission of a crime or immediate flight therefrom, and that someone who he was acting in concert with, displayed what appeared to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.

Judge Breslin, during his allocution, issued a warning to the defendant. He emphasized that a plea of guilty represented a definitive and significant action and cautioned if the defendant had any reservations about the plea, he should refrain from pleading guilty. The Judge subsequently asked the defendant if he wished to plead guilty, to which the defendant stated, "Absolutely, sir." The Court took notice that the defendant had been incarcerated since the last presentence report and allowed the defendant to waive a new presentence report. The Judge then proceeded to impose an indeterminate sentence of imprisonment of seven years to fourteen years.

New York State Penal Law § 70.02 dictates the sentencing guidelines for violent felony convictions, while Penal Law § 70.04 dictates the sentencing guidelines and eligibility criteria for second violent predicate offenders. Under P.L. § 70.04, a second violent felony offender is defined as an individual who stands convicted of a violent felony offense, as defined in § 70.02(1), who was previously convicted of a violent felony within ten years of the commission of the present felony.

On June 21, 2024, the United States Supreme Court, in Erlinger v. United States, supra, expanded the Fifth and Sixth Amendments of the United States Constitution that guarantees a trial by jury to include the right to a unanimous jury to determine any finding of fact that may increase a defendant's minimum punishment. Id. at 1850. Specifically, the Court examined and rejected the finding by the District Court and upheld by the Seventh Circuit, that defendant Erlinger qualified under the Armed Career Criminals Act (hereafter "ACCA") for an enhanced sentence. The Court determined that this "intensely factual" inquiry, dubbed, the "occasions inquiry," must be resolved by a jury beyond a reasonable doubt, rather than by a judge by a preponderance of the evidence standard. It delegated factual findings, including whether prior convictions were committed on separate occasions, to a unanimous jury. Id.

In the decision, the Supreme Court reviewed several sentencing decisions and found that [*3]they encroached upon the "guardrails" of the Fifth and Sixth Amendments protections, including Apprendi v. New Jersey, 530 U.S. 466 (2000). While the Erlinger Court did not address or invalidate New York's sentencing enhancement statutes, New York Courts are now confronted with this Constitutional issue given the similarity of the New York's enhanced sentencing protocols to the invalidated statutes.

The first New York case to examine the impact of Erlinger on the application of New York State's persistent felony offender sentencing statute, pursuant to P.L. § 70.08 and 70.04(1)(b)(iv), was People v. Lopez, 85 Misc 3d 181, (Sup. Ct. NY County, 2024). In that matter, the Court looked solely at the tolling calculations that would have been necessary, considered that both the prosecution and defense agreed that such tolling calculation and extension of the ten-year window constituted an issue of fact, and that the prescribed range of penalties would therefore increase. The Lopez court concluded that such findings would have to be made by a unanimous jury, that it lacked the authority to empanel such a jury for sentencing, citing to C.P.L. §§ 400.15, 400.16, 260, 270, 280, 290, 300 and 310, and sentenced the defendant as a first-time felony offender. Id at 525.

Several months later, in People v. Banks, 85 Misc 3d 423 (Sup. Ct., NY. County, 2024), another New York Court concluded that pursuant to Erlinger, any tolling calculation required a finding of fact by a jury. The Banks Court specifically considered and rejected the People's contention that Judiciary Law § 2-b(3), which allows a "court of record to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it" empowers the Court to empanel a sentencing jury. Id. The Court reasoned that the Judiciary Law is only to be used sparingly, in extraordinary circumstances, arising in a single case, and cannot be applied to a whole category of cases. The Court held that the Legislature, not the Court, was duly authorized to create and regulate new practice and procedure. Therefore, the Banks Court concluded that the Court had no Constitutional way to determine that the defendant was a persistent violent felony offender and sentenced the defendant as a first-time felony offender. See, id.

Despite its conclusion, the Banks Court examined the United States Supreme Court decisions in Apprehendi, supra, Almendarez-Torres v. United States, supra, along with their "progeny" in lieu of Erlinger, and concluded that the "carve out" exception remained valid, allowing Courts to find the mere existence of a prior conviction, without the need of a jury. See Banks, supra (relying upon People v. Prindle, 29 NY3d 463 (2017); People v. Quinones, 12 NY3d 116 (2009); People v. Rivera, 5 NY3d 61 (2005)). Moreover, the Erlinger Court specifically upheld the exceptions carved out by Almendarez-Torres v. United States, 523 U.S. 224 (1998), allowing a Judge to undertake the job of finding the sole fact of a prior conviction, and allowing the Court to accept a defendant's "freely admitted" fact during a guilty plea. See Erlinger, 144 S.Ct. at 1851-1853.

Courts continue to be split on this issue. In People v Perry, 85 Misc 3d 982 (Sup. Ct. Kings County, 2024), the Court held pursuant to Erlinger, only a jury (not a judge) can find facts that increase the range of penalties a defendant faces. However, the Perry Court agreed that the Court can make a finding of a prior conviction, but tolling pursuant to a period of incarceration, constitutes a factual question that must be decided by a jury, not a judge. In the same year, another court, People v Rivera, 85 Misc 3d 1032 (Sup. Ct. NY County, 2024), held that Erlinger did not require a jury to find the facts necessary to apply or calculate the tolling provision. In the Rivera's Court's opinion, Erlinger was limited to requiring a jury finding only for certain fact-[*4]intensive determinations under federal law, not for ministerial or clerical facts like dates of incarceration. Specifically, the Court found that determining the dates and duration of prior incarcerations (for tolling purposes) is a straightforward, objective process that can be done by a judge using official records, not requiring a jury.

Earlier this year, in People v Jackson, 86 Misc 3d 411 (Sup. Ct. Queens County, 2025), the Court concluded that Erlinger permitted a "narrow exception" that allows judges to find only "the fact of a prior conviction" as indicated by the Apprendi doctrine, and did not expand the exception "to include facts which are part of the mechanical operation of the criminal justice system such as the date that a defendant may have been incarcerated (or was released from custody) "for any constitutionally obtained conviction." [emphasis added] Id at 420-421.

Nonetheless the Court concluded that the dates of a defendant's convictions and sentences, the dates that a defendant enters and is discharged from any correctional facilities and the duration and/or length of a defendant's sentence(s) is not a question of fact since 1) they are derived from trustworthy and "secure official court and correctional records", 2) involve no "exercise of discretionary judgement by the court", and 3) "relate neither to the manner and circumstances of the commission of the crime, nor to the character and background of the defendant" and therefore may be decided by a judge not a jury. See People v. Cephas, (2003 NY Slip Op. 51068(U)), at n. 11, 2003 WL 21783355; People v. Rivera, 85 Misc 3d 1032 (Sup. Ct. NY County, 2024).

While this Court believes that dates of convictions, sentences, length and duration of incarceration, do not ordinarily constitute an issue of fact requiring a jury, in this matter, where the particular facts involve a conviction that was vacated due to impropriety, the defendant improperly served a longer sentence than permitted, new evidence exonerating the defendant that came to light two years before the Prosecutor and the Court moved to vacate that conviction, those two years significantly impact the predicate calculation, the defendant being required to replead to the top count felony charge, even though officer impropriety was substantiated, and the defendant was resentenced to something higher than the minimum, time that he had completed years before his actual release, causes some real pause by this court. The minutes from the plea make it is clear, but for a new plea, defendant was not going to be released from jail, although he had already served close to the maximum that he could serve on the pending charges. In this Court's opinion, defendant's records of convictions and sentences, is therefore not open and notorious, lacks clarity, conciseness, reliability and trustworthiness.

Moreover, having reviewed the minutes of the court appearance and the terms of the plea and sentence, this Court has serious concerns about the voluntariness, legality and Constitutionality of the plea and sentence. Just prior to the plea, the District Attorney's office dismissed the first few counts of the indictment, thereby making the top count of the indictment for both the defendant and his co-defendant Lavelle Jones, Robbery in the First Degree, PL §160.15 (4), which involves the forcible stealing of property and the displaying of what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm in the course of the commission of the crime or immediate flight therefrom by the defendant or another participant.

In the allocution, there was no questioning about a ballistics report or if the pistol displayed was loaded or operable, which is an affirmative defense. The questions and answers by the defendant and co-defendant pointed to another participant that displayed the weapon, but neither offered that person's name, indicated how many people were present nor did the Court indicate that anyone else was charged on the indictment. Both defendant and co-defendant pled [*5]guilty to Class B violent felonies, but were sentenced to an indeterminate sentence, instead of the mandatory determinate sentence required by PL § 70.00(2)(b), New York State's sentencing guidelines. In addition, since defendant pled guilty to a violent "B" felony, he is required to comply with mandatory post-release supervision of a minimum of 2.5 years or a maximum of 5 years, but the Court did not address or advise him.

"A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences." See People v Harris, 61 NY2d 9, 19 (year), Boykin v Alabama, 395 US 238, 244 [1969] and People v Catu, 4 NY3d 242 [2005]. While the Court is not required to engage in any particular colloquy when allocating a defendant, due process requires the record to be clear that "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." See Boykin v Alabama, 395 US 238, 244 [1969], People v Moissett, 76 NY2d 909, 910-911 [1990] and People v Ford, 86 NY2d, 397, 403 [1995].

While a criminal court is not expected to advise a defendant of all the ramifications that a guilty plea may have, it must advise as to any direct consequences, which has been defined as having a definite, immediate and largely automatic effect on the defendant's punishment. In 2005, the Court of Appeals held that the imposition of a mandatory post-release supervision period is a direct consequence and indicated that a defendant must be aware of the post-release supervision component of that sentence for the plea to be knowing, voluntary and intelligent. Moreover, the Court held that the "failure of a court to advise of post-release supervision requires reversal of the conviction." See People v Catu, 4 NY3d 242, 245 [2005], People v Van Deusen, 7 NY3d 744, 745 [2006], People v Collier, 22 NY3d 429 [2013].

Defendant was also not advised that he was pleading guilty to a felony or warned that he would be considered a predicate felon and face an enhanced sentence on any future felony conviction. While there is no case law that has classified the failure to inform a defendant of a predicate felony classification, nor designating the predicate classification as a direct or collateral consequence, the fact that the defendant was not informed, in this Court's opinion, needs to be considered as to whether the plea was knowing, intelligent and/or voluntary.

In addition to the plea and sentence potentially being subject to vacatur or reversal due to lack of voluntariness, there are questions as to the conduct of the Albany District Attorney's office and/or the validity of the plea. Given the amount of time that had passed, even Judge Breslin during the plea allocution, acknowledged that there were serious questions as to whether the People would be able to go forward or prove the case. In his questioning, he indicated, "[i]f you plead guilty today and you're released in within a short period of time and two weeks from now you are talking to your attorney and saying, hey, how come you let me plead guilty, this is a case that's, you know, 20 years old, they couldn't have proved it, why did I plead guilty, tell them I want to withdraw the plea, I want a trial, that request will be neither timely nor persuasive." [plea minutes, page 17, lines 9-16].

Significantly, there was exculpatory evidence, known by the Prosecutor and the Court. The detectives that investigated the robbery and homicide were found to have acted illegally and improperly, having threatened and coerced defendant and co-defendant and their families, threatening lethal injection if they didn't confess.^[FN4] The detectives were also found to have lied at [*6]the trial.^[FN5] In addition, one of the detectives was deceased and there was no indication if any of the other witnesses were available or ready to come forward. Thus, the People had a Brady obligation to disclose exculpatory information before any plea, which did not occur.

While the Court is unaware if the defendant has moved to vacate his prior conviction pursuant to CPL 440.40 or filed an Appeal challenging the Constitutionality of the plea and/or sentence, failure to do so is not an automatic bar to challenging the Constitutionality of a predicate conviction. (see People v. Abdus—Samad, 69 AD3d 516, 517, [2010], lv. denied 15 NY3d 746, [2010]. Moreover, a defendant has the right to independently challenge the Constitutionality of a prior felony conviction, for predicate adjudication purposes, even if he did not appeal the prior conviction See, People v Santiago, 91 AD3d 438 [First Dept, 2012]; People v. Johnson, 196 AD2d 408, [1993], lv. denied 82 NY2d 806, [1993].

Given the issues with the underlying felony conviction and sentence, this Court cannot in good conscience adjudicate the defendant a Second Violent Felony Offender pursuant to his 2016 conviction.

This constitutes the Decision and Order of this Court.