§ 400.19 — Procedure for determining whether defendant is a second child sexual assault felony offender

New York § 400.19

• Jurisdiction: New York
• Law CPL: Criminal Procedure
• Title L: Sentence
• Part 2: The Principal Proceedings
• Art. 400: Pre-sentence Proceedings

Text

§ 400.19 Procedure for determining whether defendant is a second child\n sexual assault felony offender.\n 1. Applicability. The provisions of this section govern the procedure\nthat must be followed in any case where it appears that a defendant who\nstands convicted of a felony offense for a sexual assault upon a child\nas defined in section 70.07 of the penal law has previously been\nconvicted of a predicate felony for a sexual assault upon a child.\n 2. Statement to be filed. When information available to the people\nprior to the trial of a felony offense for a sexual assault against a\nchild indicates that the defendant may have previously been subjected to\na predicate felony conviction for a sexual assault against a child, a\nstatement may be filed by the prosecutor at any time before trial\ncommences setting forth the date and place of each alleged predicate\nfelony conviction for a sexual assault against a child and a statement\nwhether the defendant was eighteen years of age or older at the time of\nthe commission of the predicate felony. Where the provisions of\nsubparagraph (v) of paragraph (b) of subdivision one of section 70.06 of\nthe penal law apply, such statement also shall set forth the date of\ncommencement and the date of termination as well as the place of\nimprisonment for each period of incarceration to be used for tolling of\nthe ten year limitation set forth in subparagraph (iv) of paragraph (b)\nof such subdivision.\n 3. Preliminary examination. The defendant must be given a copy of such\nstatement and the court must ask him whether he wishes to controvert any\nallegation made therein. If the defendant wishes to controvert any\nallegation in the statement, he must specify the particular allegation\nor allegations he wishes to controvert. Uncontroverted allegations in\nthe statement shall be deemed to have been admitted by the defendant.\n 4. Cases where further hearing is not required. Where the\nuncontroverted allegations in the statement are sufficient to support a\nfinding that the defendant has been subjected to a predicate felony\nconviction for a sexual assault upon a child and that the defendant was\n18 years of age or older at the time of the commission of the predicate\nfelony, the court must enter such finding and when imposing sentence\nmust sentence the defendant in accordance with the provisions of section\n70.07 of the penal law.\n 5. Cases where further hearing is required. Where the defendant\ncontroverts an allegation in the statement, the court must proceed to\nhold a hearing.\n 6. Manner of conducting hearing. (a) A hearing pursuant to this\nsection must be before the court without jury. The burden of proof is\nupon the people and a finding that the defendant has been subjected to a\npredicate felony conviction for a sexual assault against a child as\ndefined in subdivision two of section 70.07 of the penal law and that\nthe defendant was 18 years of age or older at the time of the commission\nof the predicate felony must be based upon proof beyond a reasonable\ndoubt by evidence admissible under the rules applicable to a trial of\nthe issue of guilt.\n (b) Regardless of whether the age of the victim is an element of the\nalleged predicate felony offense, where the defendant controverts an\nallegation that the victim of an alleged sexual assault upon a child was\nless than fifteen years old, the people may prove that the child was\nless than fifteen years old by any evidence admissible under the rules\napplicable to a trial of the issue of guilt. For purposes of determining\nwhether a child was less than fifteen years old, the people shall not be\nrequired to prove that the defendant knew the child was less than\nfifteen years old at the time of the alleged sexual assault.\n (c) A previous conviction in this or any other jurisdiction which was\nobtained in violation of the rights of the defendant under the\napplicable provisions of the constitution of the United States must not\nbe counted in determining whether the defendant has been subjected to a\npredicate felony conviction for a sexual assault upon a child. The\ndefendant may, at any time during the course of the hearing hereunder,\ncontrovert an allegation with respect to such conviction in the\nstatement on the grounds that the conviction was unconstitutionally\nobtained. Failure to challenge the previous conviction in the manner\nprovided herein constitutes a waiver on the part of the defendant of any\nallegation of unconstitutionality unless good cause be shown for such\nfailure to make timely challenge.\n (d) At the conclusion of the hearing the court must make a finding as\nto whether or not the defendant has been subjected to a predicate felony\nconviction for a sexual assault against a child as defined in\nsubdivision two of section 70.07 of the penal law and whether the\ndefendant was 18 years of age or older at the time of the commission of\nthe predicate felony.\n 7. Subsequent use of predicate felony conviction finding. Where a\nfinding has been entered pursuant to this section, such finding shall be\nbinding in any future proceeding in which the issue may arise.\n