§ 400.40 — Procedure for determining prior convictions for the purpose of sentence in certain cases

New York § 400.40

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

Text

§ 400.40 Procedure for determining prior convictions for the purpose of\n sentence in certain cases.\n 1. Applicability. Where a conviction is entered for an unclassified\nmisdemeanor or for a traffic infraction and the authorized sentence\ndepends upon whether the defendant has a previous judgment of conviction\nfor an offense, or where a conviction is entered for a violation defined\noutside the penal law and the amount of the fine authorized by the law\ndefining such violation depends upon whether the defendant has a\nprevious judgment of conviction for an offense, such issue is determined\nas provided in this section.\n 2. Statement to be filed. If it appears that the defendant has a\nprevious judgment of conviction and if the court is required, or in its\ndiscretion desires, to impose a sentence that would not be authorized in\nthe absence of such previous judgment, a statement must be filed after\nconviction and before sentence setting forth the date and place of the\nprevious judgment or judgments and the court must conduct a hearing to\ndetermine whether the defendant is the same person mentioned in the\nrecord of such judgment or judgments. In any case where an increased\nsentence is mandatory, the statement may be filed by the court or by the\nprosecutor. In any case where an increased sentence is discretionary,\nthe statement may be filed only by the court.\n 3. Preliminary examination. The defendant must be given a copy of\nsuch statement and the court must ask him whether he admits or denies\nsuch prior judgment or judgments. If the defendant denies the same or\nremains mute, the court may proceed with the hearing and, where the\nincreased sentence is mandatory, it must impose such.\n 4. Time for hearing. In any case where a copy of the statement was\nnot received by the defendant at least two days prior to the preliminary\nexamination, the court must upon request of the defendant grant an\nadjournment of at least two days before proceeding with the hearing.\n 5. Manner of conducting hearing. A hearing pursuant to this section\nmust be before the court without a jury. The burden of proof is upon\nthe people and a finding that the defendant has been convicted of any\noffense alleged in the statement must be based upon proof beyond a\nreasonable doubt by evidence admissible under the rules applicable to\ntrial of the issue of guilt.\n