People of the State of New York v. Rodolfo Grey, Defendant. (2026)

By pro se motion dated August 8, 2025, the defendant moves for an order: (1) setting aside his sentence pursuant to Criminal Procedure Law (CPL) section 440.20; (2) assigning court-appointed counsel to assist the defendant with this motion pursuant to CPLR 1101 and 1102; and (3) producing the defendant at any hearing on this motion pursuant to CPL section 440.30(5).¹ The People served and filed opposition on April 7, 2026.² The defendant served and filed reply papers on April 24, 2026.

The court has reviewed the parties' submissions along with the court file in making its determination.

Procedural History

The defendant was charged under Indictment No. 70566-2023 with Attempted Murder in the Second Degree and other related charges in connection with a July 4, 2022 stabbing of two brothers (see Indictment; People's Aff ¶¶ 3-4).

On or about April 5, 2024, the People filed a predicate statement pursuant to CPL Article 400 (the predicate statement). The predicate statement indicated that the defendant was sentenced for Attempted Robbery in the First Degree, a class C violent felony, on May 20, 1987, under Indictment No. 8909-86; Attempted Robbery in the First Degree, a class C violent felony, on October 30, 1989, under Indictment No. 8932-88; Attempted Murder in the Second Degree, a class B violent felony, on October 30, 1989, under Indictment No. 1245-89; and Promoting Prison Contraband in the First Degree, a class D non-violent felony, on January 26, 1990, under Indictment No. 8408-89 (see Predicate Statement; see also Defendant's Exhibit A).³ The defendant's record of incarceration reflects a continuous period of incarceration from December 13, 1986 to June 8, 1988, and again from September 15, 1988 to May 7, 2013 (see Defendant's Exhibit A).

On March 22, 2024, after a jury trial on the instant indictment, the defendant was convicted of one count of Assault in the First Degree, a class B violent felony, in violation of Penal Law (PL) section 120.10(1); one count of Assault in the Second Degree, a class D violent felony, in violation of PL section 120.05(1); and one count of Criminal Possession of a Weapon in the Fourth Degree, an A misdemeanor, in violation of PL section 265.01(2) (see Uniform Sentence & Commitment dated 7/9/24). Sentencing was adjourned to April 30, 2024.

On April 23, 2024, the defendant filed a motion challenging the People's predicate statement on the ground that his sentence for Attempted Murder in the Second Degree under Indictment No. 1245-89 was illegal and unconstitutionally excessive because "the trial court ran his sentences of 10-to-20 years for Attempted Murder in the Second Degree and 5-to-10 for Attempted Robbery in the First Degree consecutively on October 30, 1989" (Defendant's Exhibit B, Farrell Aff ¶¶ 4-5). In that motion, the defendant conceded that the People's predicate statement "accurately reflects that the defendant was released from prison on May 7, 2013" and "was in continuous custody from September 14, 1988,⁴ until May 7, 2013" (id. ¶ 6). Further, the defendant set forth no arguments contesting his period of incarceration from December 13, 1986 to June 8, 1988 (see Defendant's Exhibit B).

On April 30, 2024, the initial sentencing date, the court acknowledged receipt of the defendant's motion challenging the predicate statement, set a briefing schedule, and adjourned the matter to July 9, 2024 for decision and sentencing (see People's Exhibit 1, 4/30/24 tr at 2-5).

By decision and order dated July 9, 2024, the court denied the defendant's motion in its entirety (see Defendant's Exhibit C; People's Exhibit 1, 7/9/24 tr at 2-4). That same date, the defendant was arraigned on the predicate statement (see People's Exhibit 1, 7/9/24 tr at 4-7). The defendant admitted that he was the person convicted of the four felonies listed on the predicate statement but indicated that he wished to challenge the constitutionality of the prior convictions (id. at 6). When the court inquired whether the defense requested a hearing with respect to the predicate felonies, counsel stated,

Judge, what I am requesting is that the -- well, he's not going to acknowledge what we just spent lot of time litigating. We understand the Court's decision and we respectfully accept it. That is what he is saying and that's where we stand.

There is no new evidence, we don't have a new challenge. We are relying on our constitutional challenges as set forth in our papers and as set forth accurately as you put them on the record today. We respect your decision, we respectfully disagree with it and then we will see what the Appellate Division does. We have no new challenges, no new issues to litigate and there's no new facts to bring up. We did it all and we will continue to fight with the higher court

(id. at 6-7). The court therefore determined that a further hearing was unnecessary at that time, as the defendant "conceded that the court has addressed all issues that the defendant has raised with respect to his challenge to the predicate statement" and both sides had been heard in writing (id. at 7). The court then again confirmed that "the defendant was not requesting a hearing at this time because, Counsel, you have indicated that you have nothing additional other than what you have set forth in your motion papers," and defense counsel responded, "That's correct" (id.). Consequently, the defendant was adjudicated a persistent violent felony offender pursuant to PL section 70.08(1) and sentenced to 20 years to life on the Assault in the First Degree count, 12 years to life on the Assault in the Second Degree count, and 364 days on the Criminal Possession of a Weapon in the Fourth Degree count, all to run concurrent (see id. at 8, 12-13; see also Uniform Sentence & Commitment).

On July 13, 2024, the defendant filed a notice of appeal with the Appellate Division, Second Department (see NYSCEF EDDS Doc ID I2W4CC). By order dated July 18, 2024, this court appointed Appellate Advocates to represent the defendant on appeal. The Second Department also assigned Appellate Advocates as appellate counsel in an order dated September 4, 2024.

By motion dated August 8, 2025, the defendant now moves under CPL section 440.20, on a self-represented basis, to set aside his sentence on the ground that his sentence "was unauthorized, illegally imposed, or otherwise invalid as a matter of law" (Defendant's Aff ¶ 2).

Discussion

CPL section 440.20 authorizes the court to, "[a]t any time after the entry of a judgment, . . . . 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." The court, however, is required to summarily deny the motion when the issue raised "was previously determined on the merits upon an appeal from the judgment or sentence" (CPL § 440.20[2]). The statute further grants the court the discretion to deny a motion when the issue raised was previously determined on the merits in a prior motion or proceeding, other than an appeal, or upon a prior motion or proceeding filed in federal court (see CPL § 440.20[3]). A summary denial of the defendant's 440.20 motion is not permitted if "there has been a retroactively effective change in the law controlling such issue" since the prior determination (CPL §§ 440.20[2], [3]).

Here, the defendant argues that the court "disregarded the principles of Erlinger by conducting the hearing 'without [a] jury' and ignoring the 6th Amendment requirement when [the court] went beyond merely identifying the past criminal convictions of the defendant to explore the manner and means by which the defendant committed the prior offenses" (Defendant's Memo at 3). More specifically, the defendant submits that a predicate determination in this case "included not just the fact of his prior convictions, but also the jurisdictions in which those crimes occured [sic] and their dates, and whether [the] defendant was incarcerated on particular dates" (id. at 3-4). In sum and substance, the defendant contends that the United States Supreme Court's decision in Erlinger v United States (602 US 821 [2024]) precluded the court from sentencing the defendant as a persistent violent felony offender without first conducting a hearing with a jury present.

On June 21, 2024, 18 days prior to the defendant's sentencing, the United States Supreme Court handed down its Erlinger decision. In Erlinger, the defendant pled guilty to a federal charge of being a felon unlawfully in possession of a firearm, in violation of 18 USC section 922(g), which carried a sentence of up to 10 years' imprisonment (see 602 US at 826). The government also charged the defendant under the Armed Career Criminal Act (ACCA), which in relevant part, increased the term of imprisonment to no less than 15 years for any individual unlawfully in possession of a firearm who has three prior convictions for a violent felony offense "committed on occasions different from one another" (18 USC § 924[e][1]; Erlinger, 602 US at 825-826). At resentencing for the Erlinger defendant, the government sought a sentence of 15 years under ACCA because, according to them, the defendant committed burglaries on four separate occasions when "within a span of days Mr. Erlinger burglarized a pizza shop, a sporting goods store, and two restaurants" (Erlinger, 602 US at 826-827). The defendant objected on the grounds that these burglaries "had not occurred on four separate occasions but during a single criminal episode," that the different occasions inquiry required an assessment of the facts surrounding those offenses, and that the Fifth and Sixth Amendments entitled him to a jury to assess the facts of his prior conviction (id. at 827). The district court rejected the defendant's arguments, decided from the bench that his prior burglaries occurred on different occasions, and sentenced the defendant to 15 years under ACCA (id.).

The United States Supreme Court disagreed and, consistent with its prior holdings in Apprendi v New Jersey (530 US 466 [2000]) and Alleyne v United States (570 US 99 [2013]), ruled that the Fifth and Sixth Amendments require a unanimous jury to decide, beyond a reasonable doubt, whether a defendant's prior offenses were "committed on occasions different from one another" sufficient to impose an enhanced ACCA sentence. The Court explained that if not freely admitted, "[v]irtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury" (Erlinger, 602 US at 834 [internal quotation marks omitted], quoting Apprendi, 530 US at 490). In the Erlinger case, the Court illustrated the "fact-laden task" of resolving ACCA's different occasions inquiry, stating in part,

To trigger ACCA and expose him to longer prison terms, the government had to prove that his past included three convictions for "violent felon[ies]" or "serious drug offense[s]" that were "committed on occasions different from one another." And under Wooden, deciding whether those past offenses occurred on three or more different occasions is a fact-laden task. Were the crimes "committed close in time"? How about the "[p]roximity" of their "location[s]"? Were the offenses "similar or intertwined" in purpose and character? All these questions, Wooden observed, "may be relevant" to determining whether the offenses were committed on one occasion or separate ones—and all require facts to be found before ACCA's more punitive mandatory minimum sentence may be lawfully deployed

(Erlinger, 602 US at 834, quoting Wooden v United States, 595 US 360 [2022]).

Notwithstanding, Erlinger did not disturb the "narrow exception" announced in Almendarez-Torres v United States (523 US 224 [1998]), which permits a sentencing court to determine, without a jury, the fact of a prior conviction (Erlinger, 602 US at 838-839). Thus, a judge may determine "what crime, with what elements, the defendant was convicted of" and may refer to certain materials such as judicial records, plea agreements, and transcripts of court proceedings to make that determination (Erlinger, 602 US at 839; see Mathis v United States, 579 US 500, 511 [2016] ["a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense"]). Thus, a sentencing court exceeds the bounds of the Almendarez-Torres exception only when the court must "do more than identify [a defendant's] previous convictions and the legal elements required to sustain them" and instead explores the means or manner in which a defendant committed a prior crime (Erlinger, 602 US 839-840; see Mathis, 579 US at 511).

Notably, rather than expanding the Sixth Amendment's guarantee to a trial by jury, Erlinger simply applies Apprendi and Alleyne by reiterating the established principle that any fact, beyond the mere existence of a prior conviction, that increases a defendant's potential penalty must be found by a jury beyond a reasonable doubt (see Erlinger, 602 US at 835 [describing Erlinger as "nearly on all fours with Apprendi and Alleyne as any (case the Court) might imagine"]). New York courts, consistent with the principles in Apprendi, have long recognized that a defendant has "no constitutional right to a jury trial to establish the facts of his prior felony convictions" because "the prior felony convictions are the sole determinant of whether a defendant is subject to recidivist sentencing as a persistent felony offender" (People v Rivera, 5 NY3d 61, 66 [2005] [persistent felony offender sentencing based solely on judicial finding that defendant had two prior felony convictions permissible]; see People v Rosen, 96 NY2d 329, 335 [2001] [rejecting defendant's contention that persistent felony offender sentence enhancement violated his right to trial by jury]). Prior to Erlinger, constitutional challenges to New York's enhanced sentencing framework were routinely rejected (see People v Bell, 15 NY3d 935, 936 [2010] [rejecting defendant's contention that persistent violent felony offender adjudication deprived him of his constitutional right to trial by jury]; People v Leon, 10 NY3d 122, 126 [2008] [rejecting the defendant's Apprendi challenge to his persistent violent felony offender adjudication]; People v Highsmith, 21 AD3d 1037, 1038 [2d Dept 2005] [finding defendant's contention that his adjudication as a persistent violent felony offender violated his right to a jury trial to be without merit since sentence was enhanced solely based on recidivism]; People v Regan, 11 AD3d 640, 641 [2d Dept 2004] [finding that defendant was not entitled to a jury trial to determine the facts of his prior felony convictions for persistent violent felony offender adjudication]; People v Rice, 285 AD2d 617, 617-618 [2d Dept 2001] [defendant not entitled to a jury trial to determine the facts of his prior felony convictions or to receive notice of a persistent violent felony offender charge in the indictment]).

Since Erlinger, several New York courts have addressed whether the State's recidivist sentencing scheme requires jury fact-finding or is otherwise unconstitutional. Two recent Appellate Division cases provide the clearest guidance. First, the Second Department held that merely classifying a prior conviction as a "violent felony offense" as defined in the Penal Law is a purely legal determination, rather than a factual one based on the circumstances of the crime or defendant's conduct, and therefore may be decided by a judge without a jury (see People v Funderburke, -- NYS3d --, 2026 NY Slip Op 03182, *2 [2d Dept 2026]). Second, the First Department concluded that New York's tolling determination, which extends the 10-year lookback period for periods of incarceration, involves "rote arithmetic" based on certified records and thus remains a ministerial, objective calculation for the court, not a question for the jury (People v Young, -- NYS3d --, 2026 NY Slip Op 02883, *1 [1st Dept 2026]).

Similarly, several trial courts have held that New York's predicate sentencing statute does not run afoul of Erlinger (see e.g. People v Vickers, 88 Misc 3d 183, 185-188 [Sup Ct, Bronx County 2025] ["the dates of defendant's prior convictions and the sentences imposed as well as the rote task of mathematical calculations required for tolling can be determined by a judge beyond a reasonable doubt, with proof of certified official records, rather than by a unanimous jury"]; People v Jackson, 86 Misc 3d 411, 421 [Sup Ct, Queens County 2025] ["The facts necessary to determine tolling under the New York State persistent violent felony sentencing scheme continue to fall within the Almendarez-Torres exception"]; People v Taylor, 86 Misc 3d 263, 285 [Sup Ct, Nassau County 2024] [Erlinger does not clearly overrule New York precedent upholding persistent violent felony offender sentencing scheme]).

Against this legal framework, the defendant enumerates 16 cogent questions of law in support of his application (see Defendant's Questions of Law ¶ 1-16). In sum and substance, the defendant's application raises the principal question — whether the court, without a jury, was permitted to find that the defendant's incarceration for his 1987 and 1989 convictions sufficiently tolled the 10-year lookback period to determine that those convictions were predicate violent offenses.

In a written motion prior to sentencing and again orally at sentencing, the defendant challenged the constitutionality of his sentence. Specifically, the defendant argued that "but for his illegal sentence on Indictment # 1245/89, namely the consecutive aspect of it, he would have been released years earlier than he was, and thus he would have been at liberty for more than ten years prior to committing these crimes thereby making him a first violent felony offender" (Defendant's Exhibit B, Farrell Aff ¶ 7). This court previously rejected those arguments finding that the defendant was collaterally estopped from contesting the constitutionality of his sentence under Indictment No. 1245-89 for Attempted Robbery in the First Degree because the Second Department affirmed that judgment of conviction on appeal and expressly held that the sentence imposed was not excessive (see People v Grey, 190 AD2d 863, 863 [2d Dept 1993], lv denied 82 NY2d 719 [1993]), and another justice of this court determined on the defendant's prior CPL section 440.20 motion that consecutive sentences were authorized (see People v Grey, 2011 NY Slip Op 32045[U] [Sup Ct, Kings County 2011, Dwyer, J.]).

The defendant's arguments herein — that Erlinger requires fact-finding by a jury for enhanced sentencing — fail for several reasons. First, the defendant's instant 440.20 motion merely repackages his prior collateral attack on the 1989 sentencing under a new legal argument. The defendant's challenge to his 1989 sentencing, however, was resolved against him on three different occasions: once on direct appeal to the Second Department, next on his prior CPL section 440.20 motion decided on June 13, 2011 by another justice of this court, and finally by this court on his prior motion challenging the People's predicate statement. The defendant offers no new facts to disturb those determinations. Therefore, the instant motion is subject to summary denial under CPL sections 440.20(2) and (3).

As a second point, even after Erlinger, the tolling calculation and legal classification of a predicate violent felony offense do not require fact-finding by a jury. The Second Department clearly held that whether prior offenses are "violent felony offenses" is a purely legal question for the court (see Funderburke, 2026 NY Slip Op 03182, *2) and the First Department held that tolling calculations are an objective, record-based assessment rather than a jury fact-finding exercise (see Young, 2026 NY Slip Op 02883, *1). Thus, this court had the authority to determine whether the defendant's three prior offenses qualified as violent felonies under PL section 70.02, and to calculate whether the corresponding periods of incarceration for those prior violent felony convictions tolled the lookback period.

Third, Article 400 requires that a predicate hearing be conducted "before the court without [a] jury" (CPL § 400.15[7][a]) and Erlinger did not announce a new rule or narrow the long-standing exception recognized in Almendarez-Torres. To the extent that the defendant relies on contrary decisions from courts of coordinate jurisdiction (see e.g. People v Oaks, 86 Misc 3d 615, 621 [Sup Ct, Eerie County 2025] [finding that Erlinger prohibits a court from tolling determination for persistent violent felony offender status, but permits the court to determine existence of prior felony clearly within 10-year lookback period for second felony offender status]; People v Perry, 85 Misc 3d 982, 985-990 [Sup Ct, Kings County 2024] ["the facts necessary to determine the defendant's predicate felon status, specifically, the calculation of any tolling period, must be determined by a jury"]; People v Banks, 85 Misc 3d 423, 429-432 [Sup Ct, NY County 2024] [finding that since the defendant was incarcerated more than 10 years before commission of instant felony, jury must find facts of prior incarceration periods]; People v Lopez, 85 Misc 3d 171, 178-182 [Sup Ct, NY County 2024] [holding that Erlinger requires tolling decision to be made by a jury]), this court does not find them persuasive considering the binding appellate guidance (see Funderburke, 2026 NY Slip Op 03182; Young, 2026 NY Slip Op 02883).

At sentencing, the defendant did not dispute that he had two separate convictions for Attempted Robbery in the First Degree and one conviction for Attempted Murder in the Second Degree, each a violent felony offense. He likewise did not contest that he was continuously incarcerated from December 13, 1986 to June 8, 1988, and again from September 15, 1988 to May 7, 2013. Those incarceration periods tolled the 10-year lookback and rendered the defendant's 1987 and 1989 convictions qualifying predicate violent felonies for the underlying offense which occurred on July 4, 2022. Moreover, based on the defendant's admissions, the court needed only to consult the defendant's RAP sheet and certified public records to determine the dates of incarceration and perform the ministerial arithmetic required for tolling. No inquiry into the conduct or manner of the prior offenses was necessary under New York's recidivist sentencing scheme or the narrow prior conviction exception.

The defendant was therefore properly adjudicated a persistent violent felony offender. As such, the defendant's remaining contentions are rendered moot.

CONCLUSION

For the reasons set forth above, the defendant's motion to set aside his sentence pursuant to CPL section 440.20 is denied in its entirety.

This constitutes the Decision and Order of the court.

Dated: June 8, 2026

Brooklyn, New York

Hon. Joanne D. Quiñones, J.S.C.

FOOTNOTES

1.   Although the motion is dated August 8, 2025, the motion was deemed filed with the Clerk of the Court on March 19, 2026, and initially calendared for April 30, 2026.

2.   NY St Cts Elec Filing (NYSCEF) Doc Nos. 2-4.

3.   The defendant attached two separate exhibits as "Exhibit A" to his motion papers. The first Exhibit A is the People's Response to Defendant's Challenge to Persistent Violent Felony Offender Adjudication dated May 14, 2024. The second Exhibit A contains the Defendant's Record of Incarceration, Second Felony Offender Work Sheet, and the defendant's RAP sheet. These documents will collectively be referred to as "Exhibit A."

4.   Although counsel's affirmation stated "September 14, 1988," the predicate statement indicates that the defendant was incarcerated on September 15, 1988.

Joanne D. Quiñones, J.