IN 2024, ERLINGER V US HELD THAT A JURY MUST DETERMINE WHETHER A LOOKBACK PERIOD RELEVANT TO ENHANCED SENTENCING HAS BEEN TOLLED; BECAUSE THE SENTENCING COURT DETERMINED THAT ERLINGER APPLIED, AND BECAUSE THE SENTENCING COURT DID NOT HAVE THE POWER TO EMPANEL A JURY FOR RESENTENCING, DEFENDANT WAS NOT SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER; ON APPEAL THE MAJORITY HELD THAT THE ERLINGER ISSUE (I.E. WHETHER ERLINGER APPLIED) WAS NOT PRESERVED FOR APPEAL BY THE PEOPLE BECAUSE THEY EXPRESSLY DECLINED TO ARGUE IT; THE DISSENT ARGUED THE ISSUE HAD BEEN PRESERVED AND THE COURT SHOULD HAVE CONSIDERED IT (FIRST DEPT). ​

The First Department, over a comprehensive dissent, affirming Supreme Court, determined the People did not preserve the argument that the defendant should have been sentenced as a persistent violent felony offender (PFV) because Erlinger v US, 602 US 821, did not apply. The sentencing court determined Erlinger did apply. Because Erlinger held that a jury must determine whether the lookback period for PVF status has been extended by tolling, and because Supreme Court did not have the power to empanel a jury for resentencing, Supreme Court determined defendant could not be sentenced as a PVF. Defendant was sentenced as a second violent felony offender. The dissent agued the People had preserved the Erlinger issue and the First Department should have considered it:

Contrary to the dissent’s conclusion, the purpose of the preservation requirement was not served here. By expressly declining to argue that Erlinger does not apply, the People deprived defendant and the court of the opportunity to “probe [the] relevant. . . legal issues” regarding Erlinger’s applicability … .

From the dissent:

The primary question on this appeal is whether, under the United States Supreme Court’s recent decision in Erlinger v United States (602 US 821 [2024]), the Fifth and Sixth Amendments’ guarantee of a jury trial extends to the calculation of periods of tolling in measuring the lookback period used in determining whether a defendant is subject to enhanced sentencing as a recidivist felon — in this case, as a persistent violent felony (PVF) offender, to whom a 10-year lookback period applies …  If it is constitutionally required that a jury determine the tolling, New York’s procedure for making persistent violent felony offender determinations will be substantially disrupted, as Criminal Procedure Law (CPL) § 400.15(7) … provides that such determinations “must” be made at a hearing “before the court without a jury.” The impact on New York’s criminal justice system — which, according to the amicus curiae, held in custody approximately 13,500 second felony offenders and approximately 1,500 persistent felony offenders as of January 1, 2021, collectively accounting for approximately 43.8% of all state prisoners — would be grave.

In my view … the sentencing court erroneously concluded that Erlinger applied to the tolling determination required to bring one of defendant’s two prior violent felony convictions within the 10-year lookback period. Because the court correctly concluded that it had no power under the CPL to empanel a jury to make a tolling determination, it sentenced defendant as a second violent felony offender, based solely on his more recent violent felony conviction, which was within the lookback period without the need for a tolling determination. The People appeal to us from the court’s application of Erlinger, seeking to have the sentence vacated and the matter remanded so that defendant can be resentenced as a PVF offender. People v Moore, 2026 NY Slip Op 00859, First Dept 2-17-16

Practice Point: The People, as well as a defendant, must preserve issues for appeal. Here the People argued defendant should have been sentenced as a persistent violent felony offender (PVF) because Erlinger, a US Supreme Court ruling that a jury must decide lookback issues for enhanced sentencing, did not apply. The sentencing court applied Erlinger and did not sentence defendant as a PVF because a jury could not be empaneled. The People expressly declined to argue that Erlinger did not apply at resentencing and therefore did not preserve the issue for appeal.