§ 400.20 Procedure for determining whether defendant should be

sentenced as a persistent felony offender.

1. Applicability. The provisions of this section govern the
procedure that must be followed in order to impose the persistent felony
offender sentence authorized by subdivision two of section 70.10 of the
penal law. Such sentence may not be imposed unless, based upon evidence
in the record of a hearing held pursuant to this section, the court (a)
has found that the defendant is a persistent felony offender as defined
in subdivision one of section 70.10 of the penal law, and (b) is of the
opinion that the history and character of the defendant and the nature
and circumstances of his criminal conduct are such that extended
incarceration and lifetime supervision of the defendant are warranted to
best serve the public interest.

2. Authorization for hearing. When information available to the
court prior to sentencing indicates that the defendant is a persistent
felony offender, and when, in the opinion of the court, the available
information shows that a persistent felony offender sentence may be
warranted, the court may order a hearing to determine (a) whether the
defendant is in fact a persistent felony offender, and (b) if so,
whether a persistent felony offender sentence should be imposed.

3. Order directing a hearing. An order directing a hearing to
determine whether the defendant should be sentenced as a persistent
felony offender must be filed with the clerk of the court and must
specify a date for the hearing not less than twenty days from the date
the order is filed. The court must annex to and file with the order a
statement setting forth the following:

(a) The dates and places of the previous convictions which render the
defendant a persistent felony offender as defined in subdivision one of
section 70.10 of the penal law; and

(b) The factors in the defendant's background and prior criminal
conduct which the court deems relevant for the purpose of sentencing the
defendant as a persistent felony offender.

4. Notice of hearing. Upon receipt of the order and statement of the
court, the clerk of the court must send a notice of hearing to the
defendant, his counsel and the district attorney. Such notice must
specify the time and place of the hearing and the fact that the purpose
of the hearing is to determine whether or not the defendant should be
sentenced as a persistent felony offender. Each notice required to be
sent hereunder must be accompanied by a copy of the statement of the
court.

5. Burden and standard of proof; evidence. Upon any hearing held
pursuant to this section the burden of proof is upon the people. A
finding that the defendant is a persistent felony offender, as defined
in subdivision one of section 70.10 of the penal law, must be based upon
proof beyond a reasonable doubt by evidence admissible under the rules
applicable to the trial of the issue of guilt. Matters pertaining to
the defendant's history and character and the nature and circumstances
of his criminal conduct may be established by any relevant evidence, not
legally privileged, regardless of admissibility under the exclusionary
rules of evidence, and the standard of proof with respect to such
matters shall be a preponderance of the evidence.

6. Constitutionality of prior convictions. 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 may not be counted in determining
whether the defendant is a persistent felony offender. The defendant
may, at any time during the course of the hearing hereunder controvert
an allegation with respect to such conviction in the statement of the
court 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.

7. Preliminary examination. When the defendant appears for the
hearing the court must ask him whether he wishes to controvert any
allegation made in the statement prepared by the court, and whether he
wishes to present evidence on the issue of whether he is a persistent
felony offender or on the question of his background and criminal
conduct. If the defendant wishes to controvert any allegation in the
statement of the court, he must specify the particular allegation or
allegations he wishes to controvert. If he wishes to present evidence
in his own behalf, he must specify the nature of such evidence.
Uncontroverted allegations in the statement of the court are deemed
evidence in the record.

8. Cases where further hearing is not required. Where the
uncontroverted allegations in the statement of the court are sufficient
to support a finding that the defendant is a persistent felony offender
and the court is satisfied that (a) the uncontroverted allegations with
respect to the defendant's background and the nature of his prior
criminal conduct warrant sentencing the defendant as a persistent felony
offender, and (b) the defendant either has no relevant evidence to
present or the facts which could be established through the evidence
offered by the defendant would not affect the court's decision, the
court may enter a finding that the defendant is a persistent felony
offender and sentence him in accordance with the provisions of
subdivision two of section 70.10 of the penal law.

9. Cases where further hearing is required. Where the defendant
controverts an allegation in the statement of the court and the
uncontroverted allegations in such statement are not sufficient to
support a finding that the defendant is a persistent felony offender as
defined in subdivision one of section 70.10 of the penal law, or where
the uncontroverted allegations with respect to the defendant's history
and the nature of his prior criminal conduct do not warrant sentencing
him as a persistent felony offender, or where the defendant has offered
to present evidence to establish facts that would affect the court's
decision on the question of whether a persistent felony offender
sentence is warranted, the court may fix a date for a further hearing.
Such hearing shall be before the court without a jury and either party
may introduce evidence with respect to the controverted allegations or
any other matter relevant to the issue of whether or not the defendant
should be sentenced as a persistent felony offender. At the conclusion
of the hearing the court must make a finding as to whether or not the
defendant is a persistent felony offender and, upon a finding that he is
such, must then make such findings of fact as it deems relevant to the
question of whether a persistent felony offender sentence is warranted.
If the court both finds that the defendant is a persistent felony
offender and is of the opinion that a persistent felony offender
sentence is warranted, it may sentence the defendant in accordance with
the provisions of subdivision two of section 70.10 of the penal law.

10. Termination of hearing. At any time during the pendency of a
hearing pursuant to this section, the court may, in its discretion,
terminate the hearing without making any finding. In such case, unless
the court recommences the proceedings and makes the necessary findings,
the defendant may not be sentenced as a persistent felony offender.