Convicted of the violent felony offense of assault in the second degree, defendant was in 2019 sentenced as a persistent violent felony offender to a term of 18 years to life imprisonment. He now moves to set aside the sentence, challenging the facial sufficiency of the predicate violent felony statement that had been filed against him and whose allegations he admitted.

Under Penal Law § 70.08 (1) (a), a persistent violent felony offender is a person who stands convicted of a violent felony offense (see Penal Law § 70.02 [1]) after having previously been subjected to two or more "predicate violent felony convictions." To constitute a predicate violent felony conviction, sentence on the conviction must, among other criteria, "have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted" (Penal Law § 70.04 [1] [b] [iv]). In calculating this ten-year period, "any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded," and such ten-year period shall be extended by a period or periods equal to the time served under such incarceration (Penal Law § 70.04 [1] [b] [v]).

When it appears that a defendant who stands convicted of a violent felony offense has previously been subjected to two or more predicate violent felony convictions and may be a persistent violent felony offender, the People must before sentence is imposed file a statement setting forth the date and place of each alleged predicate violent felony conviction (see CPL 400.16 [1], [2]; 400.15 [2]). And where the tolling provisions of Penal Law § 70.04 (1) (b) (v) 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" (CPL 400.15 [2]).

The People concede that their previously filed predicate violent felony statement was [*2]facially insufficient, because it failed to allege sufficient tolling periods to render the first alleged predicate violent felony conviction within the requisite ten-year period.^[FN1] Accordingly, the motion to set aside the sentence must be, and is, granted.

The thornier question is what happens next. The People have filed an amended predicate violent felony statement, alleging an additional incarceration period of 542 days,^[FN2] in excess of the 447-day shortfall. Thus, on its face the amended statement establishes the requisite tolling to render defendant a persistent violent felony offender. Since defendant's 2019 sentencing, however, the United States Supreme Court decided Erlinger v United States (602 US 821 [2024]), the latest in a string of decisions analyzing the extent to which, under the Fifth and Sixth Amendments (see US Const Amends V, VI), facts necessary for sentence enhancement must be found by a jury beyond a reasonable doubt. Pursuant to Erlinger, factual determinations concerning periods of incarceration needed to establish sufficient tolling so as to authorize enhanced sentencing must be submitted to a jury (see People v Banks, — Misc 3d —, 2024 NY Slip Op 24241 [Sup Ct, NY County 2024]; People v Lopez, — Misc 3d —, 2024 NY Slip Op 24207 [Sup Ct, NY County 2024]; People v Perry, — Misc 3d —, 2024 NY Slip Op 24293 [Sup Ct, Kings County 2024]; People v Gardner, — Misc 3d — 2024 NY Slip Op 24294 [Sup Ct, Queens County 2024]), unless the defendant "freely admit[s]" these facts (Erlinger, 602 US at 834).

Erlinger, however, is not retroactive (see People v Rodney, — Misc 3d —, 2024 NY Slip Op 24304 [Sup Ct, NY County 2024]). To be sure, if the People had filed their amended predicate violent felony statement back in 2019, and defendant had freely admitted to all the facts contained in it, his sentence under the law as it existed at the time would not be subject to collateral attack once the conviction became final. But here, the People concede that the sentence was unlawful when imposed and so must be set aside. Accordingly, defendant now stands convicted of a crime that is currently pending sentence. As the matter has returned to a pre-judgment posture, the new constitutional rule of criminal procedure announced in Erlinger applies to defendant's case (see Teague v Lane, 489 US 288 [1989]).

Since New York law does not currently permit jury trials on the question of tolling (see Banks; Lopez; Perry; Gardner), defendant, who has not freely admitted to the new allegations contained in the amended predicate violent felony statement — essential to the determination that he is a persistent violent felony offender — cannot, under Erlinger, be lawfully sentenced as a persistent violent felon.

That defendant waived a jury and was convicted at a bench trial does not change the result (contra People v Rivera, — Misc 3d —, 2024 NY Slip Op 24278 [Sup Ct, NY County 2024]). To be sure, the Supreme Court has made clear that the Legislature cannot avoid the [*3]requirement that facts essential to enhance sentencing be proved to a jury beyond a reasonable doubt by classifying such facts as mere "sentencing factors" rather than elements of the crime (see Alleyne v United States, 570 US 99 [2013] [any fact that increases penalty for crime, including by increasing mandatory minimum sentence, is "element" of crime, not "sentencing factor," and must be submitted to jury]; Apprendi v United States, 530 US 466, 483 n 10 [2000] ["facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition 'elements' of a separate legal offense"]). The People therefore contend that since defendant waived his right to have a jury find whether the statutorily defined elements of the crimes ^[FN3] with which he had been charged were proved beyond a reasonable doubt, that waiver necessarily encompassed the additional "elements" that he had been previously convicted of two predicate violent felony convictions and that the date on which sentence was imposed on the earliest of these convictions, as tolled and extended by particular periods during which he was incarcerated at particular correctional facilities, was within ten years of the date of his commission of the present offense. A waiver, however, is "an intentional relinquishment or abandonment of a known right or privilege" (Johnson v Zerbst, 304 US 458, 464 [1938]; see also People v Lopez, 6 NY3d 248, 256-257 [2006] ["Waiver . . . occurs when a defendant intentionally and voluntarily relinquishes or abandons a known right"]; People v Thomas, 53 NY2d 338, 342 n 2 [1981] ["Express waiver"]). Before Erlinger, defendant could not possibly have "known" that in waiving his right to have a jury determine his guilt of the present offense, he was also waiving his right to have a jury determine whether he had in the past been convicted of two violent felonies, let alone whether, pursuant to those convictions, he was incarcerated on certain dates and at certain places, since New York law does not permit a jury to decide these questions (see CPL 400.15 [7] [a] [hearing on whether defendant was previously subjected to predicate violent felony conviction "must be before the court without jury"]; 400.16 [2])

This is particularly so because, before Erlinger, in concluding that certain facts necessary for enhanced sentencing were elements of the crime and not mere sentencing factors, the Supreme Court's determination had always involved sentence enhancements based on judge-found facts pertaining to the manner of, or circumstances surrounding, the commission of the present crime — that is, the crime for which sentence was now being imposed (see e.g. Apprendi [finding that crime was committed with racial bias]; Alleyne [finding that defendant "brandished" firearm during robbery]). But in Erlinger, the Court for the first time mandated jury trials for a factual determination of circumstances pertaining not to the present crime, but to a past offense (see Erlinger [finding that past offenses had been committed on "different occasions"]). Thus, even assuming that a knowing jury trial waiver can be retrospectively deemed to encompass additional factual determinations involving the particular circumstances of the crime for which guilt was being assessed, surely defendant's waiver could not "knowingly, intelligently and voluntarily" (Lopez, 6 NY3d at 256) extend to facts about other, past offenses or, even more particularly, the incarceration that stemmed from them (see also id. at 257 [waiver invalid when court "mischaracterized the nature of the right a defendant was being asked to cede"]; People v Page, 88 NY2d 1, 6 [1996] [requirement that defendant execute a signed, written waiver considered critical to securing a "knowing, intelligent and voluntary waiver of the right to trial by jury"]; NY Const, art I, § 2 [in criminal cases, trial by jury may be waived only [*4]"by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense"]). Simply put, "[t]he record must show, or there must be an allegation and evidence which show, that an accused intelligently and understandingly rejected his constitutional rights. Anything less is not waiver" (People v Harris, 61 NY2d 9, 17 [1983] [internal quotation marks and citation omitted]; see also People v Callahan, 80 NY2d 273, 283 [1992] ["a knowing and voluntary waiver cannot be inferred from a silent record" (citation omitted)]).

The same problem dispatches the People's alternative contention that defendant may now be lawfully sentenced as a persistent violent felon on the amended predicate violent felony statement because he previously admitted to all the allegations in the insufficient one. That defendant, when offered the opportunity to controvert (see CPL 400.16 [2]; 400.15 [3]), failed to challenge the 15 distinct periods of incarceration alleged in the original statement cannot be deemed an admission of the new allegation made for the first time in the corrected statement — that he was incarcerated at Five Points Correctional Facility from March 17, 2014, to September 10, 2015. Nor can speculation that he probably would have admitted to it had it been properly included the first time around cure a defect or satisfy an obligation of constitutional dimension.

After Erlinger, this court can neither determine, nor convene a jury to determine, that defendant was previously incarcerated at a particular time and place in an effort to enhance his sentencing, irrespective of whether only one or all 16 distinct incarcerations must, at present, be found. Without a constitutionally permissible finding as to the single residual period of incarceration, defendant cannot lawfully be adjudicated a persistent violent felony offender.

Defendant did, though, freely admit to the allegations that were included in the original statement,^[FN4] and those allegations, while not sufficing to bring his first, 1987 conviction within the ten-year period once tolled, do sufficiently allege that he was incarcerated following his second, 1996 conviction to the extent that the tolling of time from the sentence on that conviction to the commission of the present felony places the conviction, as extended, within the ten-year lookback period.^[FN5] Accordingly, based on those admissions, defendant may be lawfully resentenced as a second violent felony offender (see Penal Law § 70.04 [1] [b] [iv], [v]).

The People further contend that even if defendant cannot be lawfully sentenced as a persistent violent felony offender, he can still be resentenced as a persistent felony offender under Penal Law § 70.10. A persistent felony offender is defined as a person, "other than a persistent violent felony offender," who stands convicted of a felony after having previously [*5]been convicted of two or more felonies (Penal Law § 70.10 [1] [a]), pursuant to certain criteria (see Penal Law § 70.10 [1] [b]). When "it appears that a defendant who stands convicted of a violent felony offense . . . has previously been subjected to two or more predicate violent felony convictions . . . and may be a persistent violent felony offender" (CPL 400.16 [1]), and when "information available to the court or to the [P]eople prior to sentencing for a violent felony offense indicates that the defendant may have previously been subjected to a predicate violent felony conviction" (CPL 400.15 [2]), the People must before sentence is imposed file a statement setting forth the date and place of each alleged predicate violent felony conviction (see CPL 400.16 [1], [2]; 400.15 [2]), and a determination must be made as to whether the defendant is a persistent violent felony offender (see CPL 400.16 [1], [2]; 400.15 [3], [4], [5], [7]). Prior to Erlinger, defendant, who "appears" not to be "other than a persistent violent felony offender" as defined in the statute, and who has not admitted all the allegations in the amended statement filed against him (see CPL 400.16 [2]; 400.15 [3]), could not be sentenced as a persistent felony offender unless, after a hearing held pursuant to CPL 400.15 (5) and (7), he were found not to be a persistent violent felony offender — in other words, found to be "other than a persistent violent felony offender." But after Erlinger, defendant may not, under current New York law forbidding the holding of an otherwise required jury trial to determine questions of tolling (see CPL 400.15 [7] [a] [hearing "must be before the court without jury"]), be constitutionally found to be a persistent violent felon. Accordingly, he is plainly "other than a persistent violent felony offender."

In Almendarez-Torres v United States (523 US 224 [1998]), the Court held that the fact of a prior conviction — that is, "what crime, with what elements, the defendant was convicted of" (Mathis v United States, 579 US 500, 512 [2016]) -- need not be proved to a jury beyond a reasonable doubt, but may instead be found by a judge. Inasmuch as the Court of Appeals has held that the defendant's previous felony convictions are the "sole determinant" of whether he is subject to recidivist sentencing as a persistent felony offender (People v Rivera, 5 NY3d 61, 66 [2005] [emphasis and citation omitted]; see also People v Quinones, 12 NY3d 116 [2009]; People v Prindle, 29 NY3d 463 [2017]), New York's persistent felony offender scheme falls squarely within the Almendarez-Torres exception, and thus — unlike the persistent violent felony offender statute, which requires additional factfinding when tolling is at issue — does not violate the Sixth Amendment. That remains so even though the persistent felony statute looks in part to the sentence in order to determine persistent felony offender status. Specifically, the statute defines a previous felony conviction as one for which the defendant received a sentence in excess of one year, under which sentence he was imprisoned prior to the commission of the present felony (see Penal Law § 70.10 [1] [b] [i], [ii]). Further, inasmuch as two or more previous felony convictions are required, the statute provides that "two or more convictions of crimes that were committed prior to the time the defendant was imprisoned under sentence for any of such convictions shall be deemed to be only one conviction" (Penal Law § 70.10 [1] [c]). In other words, the second crime must have been committed after the defendant was imprisoned (on a sentence of more than one year) for the first, and both periods of imprisonment must have commenced before the defendant committed the present felony.

Under New York law, a "judgment" is comprised of both the "conviction" itself — defined as "the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument" (CPL 1.20 [13]) — and the sentence imposed thereon (see CPL 1.20 [15]). In confirming that Almendarez-Torres remains good law, Erlinger made clear that its "narrow exception" (602 US [*6]at 838 [citation omitted]) to the Sixth Amendment principle that all facts necessary for recidivist sentencing must be found by a jury — that is, the exception for the fact of a prior conviction — necessarily encompasses a judicial determination of "the jurisdiction in which the defendant's crime occurred and its date in order to ascertain what legal elements the government had to prove to secure a conviction in that place at that time" (Erlinger, 602 US at 839; see also People v Leon, 10 NY3d 122, 126 [2008] ["a sentencing judge's ability to determine whether a defendant has a prior conviction extends to the 'who, what, when and where' of a prior conviction" (internal quotation marks and citation omitted)]). Accordingly, the fact of a New York sentence — an essential component of a New York judgment of conviction — also falls squarely within the Almendarez-Torres exception and must also necessarily encompass a judicial determination of the term of the sentence imposed and its date — that is, the "who, what, when and where" of the sentence at the time it was imposed and executed (see People v McKinley, — Misc 3d —, 2024 NY Slip Op 24257 [Sup Ct, NY County 2024] ["consistent with Erlinger . . . a court may determine not only 'what crime, with what elements, the defendant was convicted of,' but also the date of sentence"]). And certainly once the court determines the dates of the imposed sentences and their execution, it may, without a jury, take judicial notice of the Gregorian calendar to determine whether a particular date did or did not precede another date — just as it may of arithmetic in determining whether, for purposes of the persistent violent felony offender statute, a particular date is within ten years of another date when no tolling is involved.

Thus, based on the three previous felony convictions alleged by the People, defendant is eligible to be sentenced as a persistent felony offender and will be so sentenced if, following a hearing held pursuant to CPL 400.20 (9), the court determines that a persistent felony offender sentence should be imposed because it is of the opinion that his history and character and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision are warranted to best serve the public interest (see CPL 400.20 [1]). If not, defendant will be resentenced as a second violent felony offender.

This opinion shall constitute the decision and order of the court.