The People of the State of New York, Respondent v. Luigi Grasso, Defendant. (2025)

Defendant moves in his most recent Criminal Procedure Law (CPL) Article 440 motions (dated January 29, 2025 and March 25, 2025) to set aside the sentence imposed under the instant indictment, contending that he was unlawfully sentenced as a discretionary persistent felony offender under Erlinger v US, 602 US 821 (2024). Specifically, he claims that the facts of his prior conviction which rendered him eligible for enhanced sentencing as a discretionary persistent felony offender should have been decided by a jury.

For the reasons that follow, defendant's motions are denied.

Procedural History

On November 6, 2015, defendant was convicted in New York County Supreme Court after a trial by jury of Criminal Possession of a Weapon in Second Degree (Penal Law § 265.03(1)(b) (three counts), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03(3) (three counts), and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]) (one count). On March 9, 2016, following a hearing, this court adjudicated defendant a persistent felony offender and sentenced him to a prison term of twenty-years-to-life on each of the seven counts, to run concurrently with each other.

In April 2024, defendant filed a CPL Article 440 motion seeking an order setting aside his sentence, contending that: (a) the court erred in sentencing defendant as a discretionary persistent felony offender because it: (i) failed to follow the proper procedure; and (ii) based its decision on prior felony convictions that did not qualify as a basis for a discretionary persistent felony offender adjudication; (b) the sentencing enhancement provisions of Penal Law § 70.10 are unconstitutional under Apprendi; and (c) trial counsel's representation at the sentencing proceeding was ineffective (see defendant's motion). The People opposed defendant's motion in papers filed September 23, 2024 and, in a Decision and Order dated January 21, 2025, this court denied defendant's motion, finding that he was properly adjudicated a persistent felony offender and that counsel did not render ineffective assistance (see January 21, 2025 Decision and Order, Court File).

In June 4, 2024, citing CPL § 440.10, defendant moved for an order setting aside his sentence based on claimed medical conditions consisting of: (1) "erroneous surgery on/in his scrotum"; (2) the use of a cane to walk; (3) "metal hip and femur side effects"; and (4) five [ ] herniated discs in the back, and two [ ] discs in the neck, with diabetic neuropathy" (defendant's motion: Grounds and Facts, p. ii). The People opposed defendant's motion in papers dated February 7, 2025, contending that defendant had failed to identify a legal basis to vacate his lawful sentence and his motion was based on the existence or occurrence of facts that are not supported by sworn allegations substantiating or tending to substantiate all essential facts pursuant to CPL § 440.30(4)(a) and (b) (People's Memorandum of Law, p. 3). This court denied defendant's motion in a May 2025 Decision and Order upon a finding that he had failed to demonstrate that the imposed sentence was unlawfully imposed, failed to "allege any ground constituting [a] legal basis" for resentencing (CPL § 440.30[4][a]), and failed to provide "sworn allegations substantiating or tending to substantiate all the essential facts" (CPL § 440.30[4][b]).

In his two latest CPL Article 440 motions, he asks this court for an order setting aside his sentence claiming that, under Erlinger, the facts of his prior conviction which rendered him eligible for enhanced sentencing as a discretionary persistent felony offender should have been decided by a jury.

Law

To determine whether a defendant may be subjected to increased punishment as a persistent felony offender, the court must first determine whether the defendant has previously "been convicted of at least two felonies" and second the court must decide whether "it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest" (CPL § 400.20[1][b]; see People v Oliver, 96 AD2d 1104, 1105 [2d Dept 1983], lv denied 63 NY2d 973 (1984).

Under Penal Law § 70.06(1), in order for a defendant to be deemed a predicate felon, a prior sentence must have been imposed within ten years of the offense underlying the next conviction. Any amount of time spent incarcerated during that ten-year period is excluded, thus extending it by "a period or periods equal to the time served under such incarceration" (Penal Law 70.06[1][b][iv] and [v]). Tolling determinations, therefore, are not inherent in the conviction itself, but rather are factual findings that affect sentencing eligibility.

In Erlinger v US, 602 US 821 (2024), the United States Supreme Court struck down New Jersey's Armed Career Criminal Act, which increased the maximum penalty a defendant could face if he had three prior qualifying convictions for crimes that occurred "on occasions different from one another." In so finding, the Court announced that "virtually 'any fact' that 'increases the prescribed range of penalties to which a criminal defendant is exposed' must be resolved by a unanimous jury beyond a reasonable doubt [or freely admitted guilty plea]" (Erlinger, 602 US at 834; see also Apprendi v US, 530 US 466 [2000] [any fact capable of increasing a defendant's penalty above the maximum must be found by a jury beyond a reasonable doubt]; Ring v Arizona, 536 US 584 [2002]; Blakely v Washington, 542 US 296 [2004]).

Erlinger at the same time recognized the Court's prior decision in Almendarez-Torres v US, 523 US 224 (1998), that when the fact of a prior conviction alone authorizes an enhanced sentence, that fact may be found by the court and does not require a unanimous finding by the jury (Erlinger, 602 US at 838, citing Alleyne v US, 570 US 99, 111, n 1 [2013] and Mathis v US, 579 US 500, 511—512 [2016]).

Although some courts of concurrent jurisdiction have ruled that defendants are constitutionally entitled to jury trials to determine predicate tolling under Apprendi and Erlinger (see eg People v Banks, 2024 WL 4128665, NY Slip Op 24241, at *5 [Sup Ct NY Co Sept 6, 2024] [Mandelbaum, J]; People v Lopez, 2024 WL 3575008, NY Slip Op 24207, at *1 [Sup Ct NY Co July 26, 2024] [Conviser, J]; People v Gardner, 2024 WL4863790, NY Slip Op 24294, at *2 [Sup Ct Qns Co Nov 21, 2024]; People Perry, 2024 WL 4847596, NY Slip Op 24293, at *5 [Sup Ct Kgs Co Nov 20, 2024]; see also People v Parsons, 2025 WL 1571863, 2025 NY Slip Op 50894, at *3 [Sup Ct BX Co Jan 16, 2025] [Stone, J]; People v Hernandez, 2025 WL 1659277, 2025 Slip Op 25135, *3 [Sup Ct NY Co June 10, 2025] [Newbauer, J]), other courts, including this one, have reached the opposite conclusion (see eg People v Berry, 2025 NY Slip Op. 50859, *5 [NY Sup Ct Qns Co May 28, 2025]; see also People v Feldman, Ind No 548/2018 [NY Sup Ct NY Co July 11, 2025] [Ward, J]; People v Lawton, 2025 NY Slip Op 50910, *8-9 [NY Sup Ct Kngs Co May 16, 2025] [Tully, J]; People v Rivera, 85 Misc 3d 1032, 1037 [NY Sup NY Co Oct 28, 2024] [Statsinger, J]; People v Harnett, Ind No 71922/22 [NY Sup Ct BX Co 2024] [Fabrizio, J]; People v McKinley, 85 Misc 3d 467, 471 [NY Sup Ct NY Co 2024] [Lantry, J]). In Berry, the court held that Erlinger does not mandate that a jury determine the fact of a prior conviction, or the dates of incarceration or release related to that conviction. In so holding, the court highlighted the distinction between "facts concerning the manner in which the instant or underlying offense was committed" — which a court may not find pursuant to Apprendi — and "[t]he facts necessary to determine tolling under the New York State persistent violent felony sentencing scheme" — which, it found, "continue to fall within the Almendarez-Torres exception to Apprendi" (2025 NY Slip Op. 50859 at *5). This court agreed with that holding in a decision on a CPL § 440.20 motion rendered September 16, 2025 in People v Paltoo, New York County Indictment Number 4386/2015.

Regardless, "in a case that does not involve tolling of the mandated ten-year period, Erlinger will have no impact on the constitutionality of the current statutory scheme for sentencing persistent violent felony offenders, since such determinations fall squarely within the Almendarez-Torres exception" (Banks, 85 Misc 3d 423; see People v Sabater, 86 Misc 3d 181, 187-88 [Sup Ct NY County 2024]; People v McKinley, 85 Misc 3d 467, 468-69 [Sup Ct NY County 2024]; People v Frazier, 85 Misc 3d 482, 487 [Sup Ct Queens County 2024]). Notably, the cases defendant cites, People v Parsons, 86 Misc 3d 1208(A) (Sup Ct Bronx County 2025) and People v Oaks, 86 Misc 3d 615 (Sup Ct Erie County 2025) both involve tolling determinations.

Conclusions of Law

In this case, defendant was sentenced to seven concurrent terms of twenty-years-to-life as a discretionary persistent felony offender. Defendant's adjudication was based on the court's determination that defendant had been convicted of two or more prior qualifying felony offenses and that defendant's history and character, and the nature and circumstances of the offense were such that warranted extended imprisonment and lifetime supervision in order to best serve the public interest (see CPL § 400.20[1][b]). Thus, whereas defendant was adjudicated a discretionary persistent felon and tolling was not considered in the court's sentencing analysis, the Erlinger decision does not apply (see eg Banks, supra). In any event, this court, consistent with Berry and the aforementioned related cases, continues to find that the fact of a period of incarceration does not implicate the manner in which an offense was committed, but rather, comparable to the fact of a conviction, is a fact that flows automatically from the operation of the criminal justice system and thus falls within the Almendarez-Torres exception to Apprendi.¹

Conclusion

For the reasons set forth above, defendant's motion seeking an order vacating his sentence is denied.

This opinion constitutes the Decision and Order of this court.

Dated: December 4, 2025

New York, New York

Ellen Biben, JSC

FOOTNOTES

1.   Furthermore, this court, like the others before it, finds that Erlinger does not apply retroactively to cases that became final before it was decided (see eg Berry, 2025 NY Slip Op. 50859; Sabater, 86 Miscc3d 181, 183 [Sup Ct New York County 2024]; People v Rodney, 85 Misc 3d 852, 854 [Sup Ct New York County 2024]).

Ellen Biben, J.