§ 400.40 Procedure for determining prior convictions for the purpose of

sentence in certain cases.

1. Applicability. Where a conviction is entered for an unclassified
misdemeanor or for a traffic infraction and the authorized sentence
depends upon whether the defendant has a previous judgment of conviction
for an offense, or where a conviction is entered for a violation defined
outside the penal law and the amount of the fine authorized by the law
defining such violation depends upon whether the defendant has a
previous judgment of conviction for an offense, such issue is determined
as provided in this section.

2. Statement to be filed. If it appears that the defendant has a
previous judgment of conviction and if the court is required, or in its
discretion desires, to impose a sentence that would not be authorized in
the absence of such previous judgment, a statement must be filed after
conviction and before sentence setting forth the date and place of the
previous judgment or judgments and the court must conduct a hearing to
determine whether the defendant is the same person mentioned in the
record of such judgment or judgments. In any case where an increased
sentence is mandatory, the statement may be filed by the court or by the
prosecutor. In any case where an increased sentence is discretionary,
the statement may be filed only by the court.

3. Preliminary examination. The defendant must be given a copy of
such statement and the court must ask him whether he admits or denies
such prior judgment or judgments. If the defendant denies the same or
remains mute, the court may proceed with the hearing and, where the
increased sentence is mandatory, it must impose such.

4. 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.

5. Manner of conducting hearing. A hearing pursuant to this section
must be before the court without a jury. The burden of proof is upon
the people and a finding that the defendant has been convicted of any
offense alleged in the statement must be based upon proof beyond a
reasonable doubt by evidence admissible under the rules applicable to
trial of the issue of guilt.