Section 400.21. Procedure for determining whether defendant is a second felony offender or a second felony drug 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  has  previously  been  convicted  of  a
  predicate  felony  and  may  be  a  second felony offender as defined in
  section 70.06 of the penal law or  a  second  felony  drug  offender  as
  defined  in  either paragraph (b) of subdivision one of section 70.70 of
  the penal law, or paragraph (b) of subdivision one of section  70.71  of
  the penal law.
    2.  Statement  to be filed. When information available to the court or
  to the people prior to  sentencing  for  a  felony  indicates  that  the
  defendant  may  have  previously  been  subjected  to a predicate felony
  conviction, a statement must be filed by the prosecutor before  sentence
  is  imposed  setting  forth the date and place of each alleged predicate
  felony conviction and whether the  predicate  felony  conviction  was  a
  violent  felony  as  that  term is defined in subdivision one of section
  70.02 of the penal law, or in any other jurisdiction of an offense which
  includes all of the essential elements of any such felony  for  which  a
  sentence  to  a  term of imprisonment in excess of one year or death was
  authorized and is authorized in this state regardless  of  whether  such
  sentence  was  imposed.  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  state  or  local  incarcerating
  agency  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 or her whether he or she 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 the court must enter such finding, including a  finding  that
  the  predicate felony conviction was of a violent felony as that term is
  defined in subdivision one of section 70.02 of the penal law, or in  any
  other  jurisdiction  of  an  offense which includes all of the essential
  elements of  any  such  felony  for  which  a  sentence  to  a  term  of
  imprisonment  in  excess  of  one  year  or  death was authorized and is
  authorized in  this  state  regardless  of  whether  such  sentence  was
  imposed,  and  when  imposing  sentence  must  sentence the defendant in
  accordance with the applicable provisions of  section  70.06,  70.70  or
  70.71 of the penal law.
    5.  Cases  where  further  hearing  is  required.  Where the defendant
  controverts an  allegation  in  the  statement  and  the  uncontroverted
  allegations  in  such  statement are not sufficient to support a finding
  that the defendant  has  been  subjected  to  such  a  predicate  felony
  conviction the court must proceed to hold a hearing.
    6. Time for hearing. In any case where a copy of the statement was not
  received  by  the  defendant  at least two days prior to the preliminary
  examination, the court must upon  request  of  the  defendant  grant  an
  adjournment of at least two days before proceeding with the hearing.

    7.  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
  such a predicate felony conviction 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) 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
  such a predicate felony conviction.  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.
    (c)  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, including a finding as  to  whether  or  not  the  predicate
  felony  conviction  was  of  a violent felony as that term is defined in
  subdivision one of section 70.02 of the  penal  law,  or  in  any  other
  jurisdiction  of an offense which includes all of the essential elements
  of any such felony for which a sentence to a  term  of  imprisonment  in
  excess  of  one  year  or death was authorized and is authorized in this
  state regardless of whether such sentence was imposed.
    8. Subsequent use of predicate  felony  conviction  finding.  Where  a
  finding has been entered pursuant to this section, such finding shall be
  binding  upon that defendant in any future proceeding in which the issue
  may arise.