§ 400.21 Procedure for determining whether defendant is a second felony

offender or a second felony drug 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 has previously been convicted of a
predicate felony and may be a second felony offender as defined in
section 70.06 of the penal law or a second felony drug offender as
defined in either paragraph (b) of subdivision one of section 70.70 of
the penal law, or paragraph (b) of subdivision one of section 70.71 of
the penal law.

2. Statement to be filed. When information available to the court or
to the people prior to sentencing for a felony indicates that the
defendant may have previously been subjected to a predicate felony
conviction, a statement must be filed by the prosecutor before sentence
is imposed setting forth the date and place of each alleged predicate
felony conviction and whether the predicate felony conviction was a
violent felony as that term is defined in subdivision one of section
70.02 of the penal law, or in any other jurisdiction of an offense which
includes all of the essential elements of any such felony for which a
sentence to a term of imprisonment in excess of one year or death was
authorized and is authorized in this state regardless of whether such
sentence was imposed. 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 state or local incarcerating
agency 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 or her whether he or she 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 the court must enter such finding, including a finding that
the predicate felony conviction was of a violent felony as that term is
defined in subdivision one of section 70.02 of the penal law, or in any
other jurisdiction of an offense which includes all of the essential
elements of any such felony for which a sentence to a term of
imprisonment in excess of one year or death was authorized and is
authorized in this state regardless of whether such sentence was
imposed, and when imposing sentence must sentence the defendant in
accordance with the applicable provisions of section 70.06, 70.70 or
70.71 of the penal law.

5. Cases where further hearing is required. Where the defendant
controverts an allegation in the statement and the uncontroverted
allegations in such statement are not sufficient to support a finding
that the defendant has been subjected to such a predicate felony
conviction the court must proceed to hold a hearing.

6. Time for hearing. In any case where a copy of the statement was not
received by the defendant at least two days prior to the preliminary
examination, the court must upon request of the defendant grant an
adjournment of at least two days before proceeding with the hearing.

7. 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
such a predicate felony conviction 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) 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
such a predicate felony conviction. 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.

(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 felony
conviction, including a finding as to whether or not the predicate
felony conviction was of a violent felony as that term is defined in
subdivision one of section 70.02 of the penal law, or in any other
jurisdiction of an offense which includes all of the essential elements
of any such felony for which a sentence to a term of imprisonment in
excess of one year or death was authorized and is authorized in this
state regardless of whether such sentence was imposed.

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