§ 400.21  Procedure for determining whether defendant is a second 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 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.
    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.   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 the court must enter such finding and when imposing  sentence
must sentence the defendant in accordance with the provisions of section
70.06 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 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 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  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.
    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.
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