Section 400.19. Procedure for determining whether defendant is a second child sexual assault felony offender

1. Applicability. The provisions of this section govern the  procedure
  that  must be followed in any case where it appears that a defendant who
  stands convicted of a felony offense for a sexual assault upon  a  child
  as  defined  in  section  70.07  of  the  penal  law has previously been
  convicted of a predicate felony for a sexual assault upon a child.
    2. Statement to be filed. When information  available  to  the  people
  prior  to  the  trial of a felony offense for a sexual assault against a
  child indicates that the defendant may have previously been subjected to
  a predicate felony conviction for a sexual assault against  a  child,  a
  statement  may  be  filed  by  the  prosecutor  at any time before trial
  commences setting forth the date and place  of  each  alleged  predicate
  felony  conviction  for a sexual assault against a child and a statement
  whether the defendant was eighteen years of age or older at the time  of
  the  commission  of  the  predicate  felony.  Where  the  provisions  of
  subparagraph (v) of paragraph (b) of subdivision one of section 70.06 of
  the penal law 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 set forth in subparagraph (iv) of paragraph (b)
  of such subdivision.
    3. Preliminary examination. The defendant must be given a copy of such
  statement and the court must ask him whether he wishes to controvert any
  allegation made therein. If  the  defendant  wishes  to  controvert  any
  allegation  in  the statement, he must specify the particular allegation
  or allegations he wishes to controvert.  Uncontroverted  allegations  in
  the statement shall be deemed to have been admitted by the defendant.
    4.   Cases   where   further   hearing  is  not  required.  Where  the
  uncontroverted allegations in the statement are sufficient to support  a
  finding  that  the  defendant  has  been subjected to a predicate felony
  conviction for a sexual assault upon a child and that the defendant  was
  18  years of age or older at the time of the commission of the predicate
  felony, the court must enter such finding  and  when  imposing  sentence
  must sentence the defendant in accordance with the provisions of section
  70.07 of the penal law.
    5.  Cases  where  further  hearing  is  required.  Where the defendant
  controverts an allegation in the statement, the court  must  proceed  to
  hold a hearing.
    6.  Manner  of  conducting  hearing.  (a)  A  hearing pursuant to this
  section must be before the court without jury. The burden  of  proof  is
  upon the people and a finding that the defendant has been subjected to a
  predicate  felony  conviction  for  a  sexual assault against a child as
  defined in subdivision two of section 70.07 of the penal  law  and  that
  the defendant was 18 years of age or older at the time of the commission
  of  the  predicate  felony  must be based upon proof beyond a reasonable
  doubt by evidence admissible under the rules applicable to  a  trial  of
  the issue of guilt.
    (b)  Regardless  of whether the age of the victim is an element of the
  alleged predicate felony offense, where  the  defendant  controverts  an
  allegation that the victim of an alleged sexual assault upon a child was
  less  than  fifteen  years  old, the people may prove that the child was
  less than fifteen years old by any evidence admissible under  the  rules
  applicable to a trial of the issue of guilt. For purposes of determining
  whether a child was less than fifteen years old, the people shall not be
  required  to  prove  that  the  defendant  knew  the child was less than
  fifteen years old at the time of the alleged sexual assault.

    (c) 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 must  not
  be  counted in determining whether the defendant has been subjected to a
  predicate  felony  conviction  for  a  sexual  assault upon a child. The
  defendant may, at any time during the course of the  hearing  hereunder,
  controvert  an  allegation  with  respect  to  such  conviction  in  the
  statement 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.
    (d)  At the conclusion of the hearing the court must make a finding as
  to whether or not the defendant has been subjected to a predicate felony
  conviction  for  a  sexual  assault  against  a  child  as  defined   in
  subdivision  two  of  section  70.07  of  the  penal law and whether the
  defendant was 18 years of age or older at the time of the commission  of
  the predicate felony.
    7.  Subsequent  use  of  predicate  felony conviction finding. Where a
  finding has been entered pursuant to this section, such finding shall be
  binding in any future proceeding in which the issue may arise.