THE SUPREME COURT’S RULING IN ERLINGER V US DOES NOT ALTER THE LANDSCAPE OF NEW YORK’S PREDICATE OFFENDER STATUTES; A JUDGE, AS OPPOSED TO A JURY, CAN MAKE THE CALCULATIONS NECESSARY TO DETERMINE THE BOUNDS OF THE 10-YEAR LOOKBACK PERIOD, INCLUDING THE TOLLING OF THE LOOKBACK BY INCARCERATION (SECOND DEPT).

The Second Department, reversing the resentence, in a full-fledged opinion by Justice Landicino, determined the US Supreme Court decision in Erlinger v US “does not alter the landscape of New York’s predicate offender statutes, the constitutionality of which is well-settled.” Therefore a judge, as opposed to a jury, can make the ministerial calculations required for any tolling of the 10-year lookback period for predicate offenses:

… [T]he tolling calculation under the subject predicate felony offender statutes does not involve an inquiry into the underlying facts that led to the predicate convictions. Rather, the court is required to determine the dates that a defendant entered and was discharged from a correctional facility upon serving a prior sentence … . These ministerial calculations do not implicate any factual determination as to the defendant’s actions during a prior crime of conviction and are akin to the “fact of prior conviction” … . To the extent that a sentencing court must divine the date of the commission of the present offense in order to determine the bounds of the 10-year lookback period, it is constitutionally permitted to use Shepard documents [judicial records, plea agreements, and colloquies between a judge and the defendant] to ascertain “the jurisdiction in which the defendant’s crime occurred and its date” … . Such an inquiry certainly does not impermissibly invite the sentencing court to “try to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct” … . A jury is not required to resolve an inquiry that “does not relate to the commission of the offense itself” … . To protect the rights of a defendant during sentencing as a predicate felony offender, New York’s procedural rules provide for a hearing before the judge when the defendant “controverts an allegation” in the predicate felony statement (CPL 400.21). That is all that is required—the Constitution does not entitle a defendant to a jury determination on the issue of whether a predicate offense was committed within 10 years of the commission of the instant offense, including any calculation regarding the periods during which the defendant was incarcerated. People v Gardner, 2026 NY Slip Op 05809, Second Dept 10-7-26

Practice Point: In New York, a judge, as opposed to a jury, may make the lookback calculations associated with the application of the predicate offender sentencing statutes.