§ 400.19 Procedure for determining whether defendant is a second child

sexual assault felony offender.

1. Applicability. The provisions of this section govern the procedure
that must be followed in any case where it appears that a defendant who
stands convicted of a felony offense for a sexual assault upon a child
as defined in section 70.07 of the penal law has previously been
convicted of a predicate felony for a sexual assault upon a child.

2. Statement to be filed. When information available to the people
prior to the trial of a felony offense for a sexual assault against a
child indicates that the defendant may have previously been subjected to
a predicate felony conviction for a sexual assault against a child, a
statement may be filed by the prosecutor at any time before trial
commences setting forth the date and place of each alleged predicate
felony conviction for a sexual assault against a child and a statement
whether the defendant was eighteen years of age or older at the time of
the commission of the predicate felony. Where the provisions of
subparagraph (v) of paragraph (b) of subdivision one of section 70.06 of
the penal law apply, such statement also shall 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 set forth in subparagraph (iv) of paragraph (b)
of such subdivision.

3. Preliminary examination. The defendant must be given a copy of such
statement and the court must ask him whether he wishes to controvert any
allegation made therein. If the defendant wishes to controvert any
allegation in the statement, he must specify the particular allegation
or allegations he wishes to controvert. Uncontroverted allegations in
the statement shall be deemed to have been admitted by the defendant.

4. Cases where further hearing is not required. Where the
uncontroverted allegations in the statement are sufficient to support a
finding that the defendant has been subjected to a predicate felony
conviction for a sexual assault upon a child and that the defendant was
18 years of age or older at the time of the commission of the predicate
felony, the court must enter such finding and when imposing sentence
must sentence the defendant in accordance with the provisions of section
70.07 of the penal law.

5. Cases where further hearing is required. Where the defendant
controverts an allegation in the statement, the court must proceed to
hold a hearing.

6. Manner of conducting hearing. (a) A hearing pursuant to this
section must be before the court without jury. The burden of proof is
upon the people and a finding that the defendant has been subjected to a
predicate felony conviction for a sexual assault against a child as
defined in subdivision two of section 70.07 of the penal law and that
the defendant was 18 years of age or older at the time of the commission
of the predicate felony must be based upon proof beyond a reasonable
doubt by evidence admissible under the rules applicable to a trial of
the issue of guilt.

(b) Regardless of whether the age of the victim is an element of the
alleged predicate felony offense, where the defendant controverts an
allegation that the victim of an alleged sexual assault upon a child was
less than fifteen years old, the people may prove that the child was
less than fifteen years old by any evidence admissible under the rules
applicable to a trial of the issue of guilt. For purposes of determining
whether a child was less than fifteen years old, the people shall not be
required to prove that the defendant knew the child was less than
fifteen years old at the time of the alleged sexual assault.

(c) A previous conviction in this or any other jurisdiction which was
obtained in violation of the rights of the defendant under the
applicable provisions of the constitution of the United States must not
be counted in determining whether the defendant has been subjected to a
predicate felony conviction for a sexual assault upon a child. The
defendant may, at any time during the course of the hearing hereunder,
controvert an allegation with respect to such conviction in the
statement on the grounds that the conviction was unconstitutionally
obtained. Failure to challenge the previous conviction in the manner
provided herein constitutes a waiver on the part of the defendant of any
allegation of unconstitutionality unless good cause be shown for such
failure to make timely challenge.

(d) 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 felony
conviction for a sexual assault against a child as defined in
subdivision two of section 70.07 of the penal law and whether the
defendant was 18 years of age or older at the time of the commission of
the predicate felony.

7. Subsequent use of predicate felony conviction finding. Where a
finding has been entered pursuant to this section, such finding shall be
binding in any future proceeding in which the issue may arise.