The People of the State of New York, v. Jessie Engles, Defendant. (2026)

This court sentenced the defendant as a persistent violent felony offender in March 2022. More than two years later the United States Supreme Court's decision in Erlinger v United States (602 US 821, 837 [2024]) created the question now before this court, which is whether the defendant here is entitled to have a jury determine factual issues concerning his criminal history, specifically tolling. For all the following reasons this court finds Erlinger does not apply to the facts and circumstances in this case, therefore the defendant's motion is in all respects DENIED.

JESSIE ENGLES (hereinafter the "defendant") filed a motion pursuant to CPL § 440.20 seeking an order for leave to set aside the sentence imposed by this court based primarily on the argument that his enhanced sentence should have been determined by a jury pursuant to Erlinger.

Procedural Posture:

The defendant injured a Corrections Officer on June 25, 2017 while receiving medical treatment at ECMC resulting in a four-count indictment charging: Aggravated Assault Upon a Police Officer, Penal Law § 120.11; Assault in the First Degree, Penal Law § 120.10(1); Assault on a Peace Officer, Penal Law § 120.08; and Assault in the Second Degree, Penal Law § 120.05(3).

This court presided over a Non-Jury Trial and on August 23, 2021 the following verdict was rendered:

• Aggravated Assault Upon a Police Officer, Penal Law § 120.11: not guilty.

• Assault in the First Degree, Penal Law § 120.10(1): not guilty.

• Assault on a Peace Officer, Penal Law § 120.08: guilty.

• Assault in the Second Degree, Penal Law § 120.05(3): guilty.

In advance of sentencing the People filed a statement pursuant to CPL § 400.16 alleging the defendant was a persistent violent felony offender. An amended statement was filed on October 29, 2021 followed by a second amended statement on February 25, 2022 (Lecomte-Mathewson Aff., Exh. G).

The defendant was sentenced by this court on March 16, 2022 (Lecomte-Mathewson Aff., Exh. H). This court presided over the sentencing hearing wherein the defendant was determined to be a persistent violent felony offender and he was sentenced to an indeterminate sentence of 16 years to life along with a concurrent indeterminate sentence of 12 years to life.

On direct appeal to the Fourth Department the judgment was modified on the law by reversing that part convicting defendant of Assault in the Second Degree because this charge was considered to be a lesser included offense of Assault on a Peace Officer (People v Engles, 243 AD3d 1238 [4th Dept 2025]). The New York Court of Appeals subsequently denied leave to file a criminal appeal (see People v Engles, ---NY3d---, 2026 NY LEXIS 243 [2026]).

Counsel for all parties appeared in court for oral argument on January 12, 2026, and the court also considered and reviewed the following written submissions:

• Defendant's pro se Notice of Motion for Resentencing pursuant to CPL § 440.20 dated July 7, 2025 with Affidavit of Jessie Engles in support sworn to on July 7, 2025 and Exhibit "A" attached (March 16, 2022 sentencing transcript).

• Affirmation in support of defendant's motion by Axelle Lecomte-Mathewson, Esq., sworn to on August 28, 2025 with Exhibits A-J attached.

• Opposing Affidavit of Mindy Van Leuvan, Esq. sworn to on October 16, 2025.

• Reply Affidavit in further support of defendant's motion by Axelle Lecomte-Mathewson, Esq., sworn to on October 27, 2025.

Lawfulness of Sentence:

The defendant moves pursuant to CPL § 440.20(1) to set aside his sentence on the ground that his period of incarceration should have been determined by a jury pursuant to Erlinger and Apprendi v New Jersey (530 US 466, 490 [2000]).

§ 440.20. Motion to set aside sentence; by defendant.

1. At any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law . . . .

It is well settled that a CPL § 440.20 motion is the proper vehicle for raising a challenge to a sentence as 'unauthorized, illegally imposed or otherwise invalid as a matter of law' (CPL § 440.20 [1]).

The Erlinger decision in broad terms speaks to a jury finding 'facts that increase the prescribed range of penalties to which a criminal defendant is exposed' (Erlinger, 602 US at 833 [some internal quotation marks omitted], quoting Apprendi, 530 US at 490). Erlinger also discussed exceptions to Apprendi where a judge may do no more than determine what crime, with what elements, the defendant was convicted of. In a more narrow view Erlinger ruled on the question as to whether sentencing under the federal Armed Career Criminal Act ("ACCA") requires a jury trial because sentencing could be enhanced if a defendant has three prior convictions for certain offenses.

The People here argue the defendant admitted the predicate felony convictions and that he did not argue against sentencing, rather he only argued he was not a "persistent" felon, therefore none of these issues were properly preserved. They also argue that the remedy sought is a jury trial (not a re-sentence) and because there is no statutory authority in New York for such relief the court lacks jurisdiction and the relief should be denied in its entirety.

This court disagrees with the People's waiver and jurisdictional arguments. The sentencing transcript is quite clear that the defendant felt he was entitled to a jury on the question of his status notwithstanding admitting to the prior convictions. But again, this traces back to the heart of the defense position which is that he should not have been sentenced as a persistent violent felony offender in the absence of a jury unanimously saying so. As such, the defendant properly preserved the question here and the court finds it has the requisite jurisdiction to rule on the present motion.

Moreover, the question of retroactivity looms and is somewhat unsettled here, for example in People v Taylor (---Misc 3d---, 2024 NY Slip Op 24308 [Sup Ct, Nassau County 2024]) it was held that Erlinger is not to be applied retroactively because Supreme Court jurisprudence instructs that while new substantive rules of law generally apply retroactively, new procedural rules of law generally do not (internal citations omitted). Erlinger does not state a new rule of U.S. constitutional law at all, rather it simply reiterates the rule announced in Apprendi and therefore is not to be applied retroactively (see id.).

Even though this court finds that Erlinger should not be retroactively applied, the defendant's conviction here became "final" during the pendency of this matter and after his request for relief was sought. Therefore the court will proceed to address the merits of the defendant's case and arguments.

This court is mindful of and recognizes the significant impact this ruling can and will have on the defendant's allegation that fundamental constitutional rights are at stake, and certainly Erlinger and the New York cases analyzing and interpreting same have generated a wide variety of outcomes on this question. Toward the end of last year the Court of Appeals acknowledged the existence of the open question in People v Wright (45 NY3d 125 [2025]), but the court declined to address defendant's Erlinger argument that he was constitutionally entitled to have a jury determine the tolling calculation instead stating he will have an opportunity to raise that claim upon remittal if he so chooses.

The defendant urges this court to not let ease or efficiency intrude on his constitutional rights. During oral argument defense counsel relied upon and emphasized many cases including United States v Guyton (144 F4th 449 [3d Cir 2025]) and People v Bryant (87 Misc 3d 1131 [Sup Ct, New York County 2025]). The defendant concedes he was convicted in 2002 and then again in 2008 which was within 10 years of the June 25, 2017 commission date in this case, so the primary request for relief of the defendant is that his "persistent" status be vacated.

Erlinger was decided less than two years ago, but New York courts have analyzed, interpreted, cited, and discussed its impact on New York's enhanced sentencing statutes at a rapid pace in a short amount of time. Some of the more prominently cited cases holding that Erlinger applies in New York and that a jury trial, or at least some type of relief, is required include People v Lopez (85 Misc 3d 171 [Sup Ct, New York County 2023]) and People v Banks (85 Misc 3d 423 [Sup Ct, New York County 2024]).

But this court is more persuaded by the rationale and reasoning in the many cases finding otherwise; that Erlinger does not require a unanimous jury to find beyond a reasonable doubt the necessary facts of the tolling provision and all of the other material facts at stake here resulting in a defendant being categorized as a "persistent" violent felony offender.

The First Department just held that New York's tolling provision only requires the narrow, ministerial task of calculating the tolling period - essentially "rote arithmetic calculation[s] to be made based on certified public records" (People v Young, ---AD3d---, 2026 NY Slip Op 02883 [1st Dept 2026]) (internal citations omitted). Because only a simple calculation is required, as opposed to an enhanced determination looking at the times, locations, purpose, and character of prior crimes in Erlinger, New York's enhanced sentencing provisions are not rendered unconstitutional by Erlinger (see id. at **8) (See also People v Pleasant, ---AD3d---, 2026 NY Slip Op 03275 [1st Dept May 26, 2026]) (holding defendant's argument that he was entitled to a jury determination regarding tolling is unavailing).

Similarly the Second Department just made it very clear that Erlinger does not require a jury trial to determine enhanced sentencing:

"Under the New York sentencing scheme, the question of whether a prior felony offense is a violent felony offense is not a factual one based on the circumstances of the crime, but rather a purely legal one based on whether the offense is one of the crimes listed in Penal Law § 70.02(1) (see id. § 70.04[1][a]). Thus, it is not a fact that must be found by a jury (see Erlinger v United States, 602 U.S. at 834, 838-839; Almendarez-Torres v United States, 523 U.S. 224, 226-227, 118 S. Ct. 1219, 140 L. Ed. 2d 350; People v Bell, 15 NY3d 935, 936, 940 N.E.2d 913, 915 N.Y.S.2d 208; People v Moye, 242 AD3d 1220, 241 N.Y.S.3d 801)" (People v Funderburke, ---AD3d---, 2026 NY Slip Op 03182 [2d Dept May 20, 2026]) (emphasis added).

While Young, and Funderburke are the newest and most controlling precedent, there are other cases of note. For example, subsequent to Lopez and Banks the court in People v Rivera (85 Misc 3d 1032 [Sup Ct, New York County 2024]) tackled the Erlinger question, held it did not apply, and raised a notable distinguishing element that is also present in this case. Specifically, in Rivera the defendant waived a jury trial and agreed to proceed to a Bench trial — that is exactly what took place here. Rivera held on this fact that the defendant waived the very constitutional protections that he was seeking to invoke at the sentencing phase.

The recent Queens County Supreme Court decision People v Dukes (87 Misc 3d 1255(A), 244 NYS3d 911 [Sup Ct, Queens County September 6, 2025]) succinctly summarized recent Erlinger jurisprudence:

"Courts continue to be split on this issue. In People v Perry, 85 Misc 3d 982 (Sup. Ct. Kings County, 2024), the Court held pursuant to Erlinger, only a jury (not a judge) can find facts that increase the range of penalties a defendant faces. However, the Perry Court agreed that the Court can make a finding of a prior conviction, but tolling pursuant to a period of incarceration, constitutes a factual question that must be decided by a jury, not a judge. In the same year, another court, People v Rivera, 85 Misc 3d 1032 (Sup. Ct. NY County, 2024), held that Erlinger did not require a jury to find the facts necessary to apply or calculate the tolling provision. In the Rivera's Court's opinion, Erlinger was limited to requiring a jury finding only for certain fact- intensive determinations under federal law, not for ministerial or clerical facts like dates of incarceration. Specifically, the Court found that determining the dates and duration of prior incarcerations (for tolling purposes) is a straightforward, objective process that can be done by a judge using official records, not requiring a jury."

The added wrinkle in Dukes was that even though the court believed that facts such as dates of convictions, sentences, and length and duration of incarceration were not ordinarily requiring a jury, the complicated history of defendant's conviction being vacated resulting in him "improperly serv[ing] a longer sentence than permitted," cast doubt on the clarity, conciseness, reliability, trustworthiness, and openness of the defendant's prior convictions and sentences. There are no such complications here, and all of the objective facts are clear, concise, reliable, trustworthy, and open as relates to the defendant's prior convictions and sentences.

Another recent trial court that adjudicated this issue was People v Veeney (87 Misc 3d 1229(A), 242 NYS3d 917 [Sup Ct, Kings County 2025]) where the defendant argued pursuant to Erlinger that New York's procedure for adjudicating his status as a persistent violent felony offender was unconstitutional. The court held and explained that the defendant's criminal history spoke for itself and Erlinger is limited to the ACCA "occasions" inquiry only (see id.) (see also People v Shuler, 1 Misc 3d 901[A], 2026 NY Slip Op 50104(U) [Sup Ct, Bronx County January 30, 2026]) (holding that Erlinger does not render New York's persistent violent felony offender statute (PL § 70.08) unconstitutional because, among other reasons, Erlinger centered on the ACCA's federal sentencing framework that is "materially different" from the New York statutory scheme).

As the court in People v Navarro (86 Misc 3d 1258(A) [Sup Ct, Kings County 2025]) explained, the tolling calculation is merely a quantitative finding based on an objective numerical calculation:

Further, this Court agrees that the nature of the inquiry for the tolling provision is substantially different than the ACCA's "different occasions" determination in Erlinger, and is instead more akin to the mundane "fact of a prior conviction" determination upheld in Almanderez-Torres (e.g. Jackson, 86 Misc 3d at 421 [the ten year tolling "involves no exercise of discretionary judgment by the court, and relate neither to the manner and circumstances of the commission of the crime, nor to the character and background of the defendant"]; Rivera, 85 Misc 3d at 1037-1038 [finding "no logical distinction — certainly not one that would trigger the constitutional right to a jury trial — between a judicial finding of the fact of a prior conviction which can be made by the judge without controversy — and the fact of a prior incarceration and the relevant dates which triggers the tolling provision . . . the remaining tolling provision calculus is just a bit of arithmetic, which is not a finding of fact at all"]; Vickers at 3 [the ten year tolling "only necessitates a mechanical 'quantitative' finding based on an objective numerical calculation"] [emphasis in original]) . . . .."

A variation of Rivera's jury trial waiver can be found in People v Swain (245 AD3d 416 [2d Dept 2026]) where the Second Department shed further light on this evolving area and relied upon the defendant's waiver of his right to appeal as precluding his ability to challenge his adjudication as a second felony offender under Erlinger (see also People v McLean, ---AD3d ---, NY Slip Op 07411 [3d Dept December 31, 2025](holding that the defendant's valid waiver of his right to appeal precludes appellate review of his contention that his adjudication as a second felony offender is unconstitutional in light of Erlinger)). There was no such appellate waiver here, but these examples further the point that a defendant is not automatically entitled to the jury trial contemplated in Erlinger.

The defendant here asks to be resentenced pursuant to CPL § 440.20, but what he actually goes on to challenge pursuant to Erlinger is this court's compliance with New York's procedures that determine the defendant's predicate felony status, not the actual legality of the sentence itself — because the sentence here was legal (see People v Simpson, 243 NYS3d 528 [2d Dept 2025]) (holding, similar to Swain and McLean, that a valid waiver of appeal precludes an Erlinger argument, but also adding that a challenge to second felony offender status pursuant to Erlinger actually implicates a challenge to the trial court's compliance with procedures, rather than the legality of the sentence itself) (internal citations omitted).

The present case includes objective dates that, when applied to New York's enhanced sentencing statutes, permitted this court to determine the defendant to be a persistent violent felony offender, thus subject to enhanced sentencing. There was nothing complicated or unknown about the defendant's criminal history. His prior convictions and sentences were open and notorious, clear, concise, reliable, and trustworthy (cf. Dukes, at *15). He voluntarily waived his right to a jury trial and this along with all of the other factors cited by this court means that he is now seeking to invoke a jury trial right that he already waived knowingly, intelligently, and voluntarily (see Rivera, at 1035; see also Swain, at *2; McLean, at *2). Moreover, any tolling provision in question here is "substantially different than the ACCA's 'different occasions' determination in Erlinger, and is more akin to the mundane 'fact of a prior conviction' determination upheld in Almanderez-Torres . . . " (Navarro, at *11-12). Questions that are objective and factually clear such as dates of convictions and time spent incarcerated do not require the relief the defendant seeks (see People v Young,---AD3d---, 2026 NY Slip Op 02883 [1st Dept 2026]).

A judge is in the best position to use official records depicting straightforward and objective facts including dates and duration of prior incarceration for tolling purposes. This court was not called upon to exercise any discretionary judgment, and there is no controversy associated with the basic arithmetic associated with the defendant's prior incarceration — to be sure, quantitative, objective facts are mechanical and not only was the sentence issued by this court authorized, legal, and valid, but the procedure followed was also lawful and constitutional.

NOW, upon reading and filing all of the motion papers as set forth above and upon further due deliberation, it is hereby:

ORDERED, that defendant's motion pursuant to CPL § 440.20 is denied in all respects, and it is further,

ORDERED, that this shall constitute the decision and order of the court.

This memorandum decision and order shall constitute the order in this matter for appeal purposes and no other or further order shall be required. Pursuant to CPL §§ 450.15 and 460.15, the defendant may appeal from this order denying his post-conviction motions only if a certificate is obtained granting him leave to appeal (see People v Serio, 87 AD2d 978 [4th Dept 1982]). If he wishes to appeal, the defendant must make application to the Supreme Court, Appellate Division, Fourth Department, for such a certificate within thirty (30) days of service upon him of this memorandum decision and order (see CPL § 460.10[4][a]). If the defendant is unable to pay the cost of such an appeal, he may apply to the Appellate Division for leave to appeal as a poor person.

DATED: May 27, 2026

Buffalo, New York

HON. PAUL B. WOJTASZEK

Justice of the Supreme Court

Paul B. Wojtaszek, J.