The People of the State of New York, Respondent v. Rajendra Paltoo, Defendant. (2025)

In motion papers dated December 16, 2024, defendant moved this court, through counsel Samuel Claflin, Esq., The Legal Aid Society, pursuant to Criminal Procedure Law (CPL) § 440.20, for an order setting aside the sentence this court imposed on March 6, 2024,¹ following his June 21, 2017 guilty plea to first-degree possession of a controlled substance (Penal Law § 220.21[1]), alleging that it was "illegally imposed or otherwise invalid as a matter of law" and arguing that defendant "was unlawfully sentenced as a second felony offender and was not afforded his constitutional right to a jury trial on predicate sentencing issues" pursuant to Erlinger v US, 602 US 821 [2024]) (defendant's motion, p. 1; Affirmation in Support, ¶ 1, 5; Memo of Law, 9).

For the reasons that follow, defendant's motion is denied.

Facts

On or about April 2, 2014, defendant was released on parole supervision following a 1991 second-degree murder conviction. By October 15, 2015, defendant was under investigation by the US Drug Enforcement Administration for high-level narcotics trafficking activity.

On October 5, 2015, while in the course of conducting surveillance outside of defendant's residence, members of the DEA stopped defendant as he was driving away from his apartment building and recovered a white plastic bag containing approximately 100 grams each of cocaine and heroin. Defendant was arrested and a search warrant for the apartment was obtained, pursuant to which agents recovered approximately 40 grams of cocaine and various other illicit liquids, pills, and powders from under defendant's bed.

Procedural History

On October 5, 2015, at defendant's Criminal Court arraignment, bail was set in the amount of $50,000 cash or $100,000 insurance company bond (Paek, J). On or about November 1, 2015, bail was posted, and defendant was released.

On November 6, 2015, defendant was indicted by a Grand Jury of the Special Narcotics Courts for Criminal Possession of a Controlled Substance in the First degree (Penal Law § 220.21[1]), Criminal Possession of a Controlled Substance in the Second Degree (Penal Law § 220.18[1]), and three counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1], [12]

On December 4, 2015, defendant was arraigned in Supreme Court; bail remained the same. Defendant made several subsequent court appearances, but failed to appear on February 7, 2017, the first date the case was scheduled for trial, and a bench warrant was issued.

Four months later, on or about June 7, 2017, defendant was detained on the bench warrant in Panama as he tried to fly from Cuba to the Dominican Republic. On June 21, 2017, defendant was extradited back to the United States; that same day, he pled guilty to the top count, first-degree possession of a controlled substance with a promised sentence of fifteen years in prison with five years of post-release supervision and was adjudicated a second felony drug offender based on a prior violent felony conviction, specifically the second-degree murder conviction. He was remanded pending sentence.

On August 17, 2017, defendant was sentenced as promised to a determinate 15-year term of prison with five years of post-release supervision.

In motion papers dated March 5, 2023, defendant moved this court, through counsel, pursuant to CPL § 440.20, for an order setting aside the sentence imposed under the instant indictment, alleging that it was "illegally imposed or otherwise invalid as a matter of law" on the ground that the second-degree murder conviction that served as the predicate for his second-felony offender status was not a violent felony offense and arguing that defendant should be resentenced to a twelve-year term of imprisonment with five years of post-release supervision as a second felony drug offender under Penal Law § 70.71(3) (defendant's motion, p. 1; Affirmation in Support, ¶ 2).

On August 16, 2023, defendant thereafter filed a supplement to his motion in which he further contended that he was not a second felony offender at all, under the theory that Penal Law § 70.71 excluded all class A-I felonies from serving as predicate felony offenses, and thus he "should be resentenced as a first felony drug offender to eight years' incarceration plus five years' post-release supervision" (Supplemental Memorandum of Law, p. 1).

In papers filed October 12, 2023, the People agreed that defendant should be resentenced to a determinate twelve-year term of prison with five years of post-release supervision as a second felony offender under Penal Law § 70.71(3)(B)(i), as second-degree murder is not a violent felony, but opposed defendant's contention that he should be resentenced to a determinate eight-year term of prison with five years of post-release supervision as a first felony offender (People's Response, pp. 5-6). Defendant filed a Reply on October 23, 2023, addressing the arguments raised by the People in their submission.

On March 6, 2024, after hearing from the parties and with the consent of the People, this court vacated defendant's sentence for the reasons set forth in defendant's May 2023 motion and the People's response, finding that second-degree murder, although not a violent felony offense, could serve as a predicate felony offense. The People thereafter filed a new Predicate Felony Statement ("2024 PFS"), that alleged that, on January 14, 1991, in New York County Supreme Court, defendant was convicted of and sentenced for second-degree murder (Penal Law § 125.25).

In relevant part, the clerk read defendant's prior convictions and accompanying sentences into the record, as well as the corresponding periods of incarceration, and thereafter asked defendant, "Do you admit that you are the person named in the statement" (defendant's motion, Ex. D, p. 7). Through counsel, defendant so admitted (see defendant's motion, Ex. D, p. 7). The clerk next asked defendant if he "wish[ed] to dispute any charges made in the statement;" in response, through counsel, defendant stated, "None other than the record we've already made" (defendant's motion, Ex. D, p. 7), referring to the objection raised in the August 2023 motion that second-degree murder could not qualify as a predicate felony offense (see defendant's motion, Ex. D, p. 4). Defendant then declined to dispute any of the allegations relating to the facts and dates of his prior incarceration (defendant's motion, Ex. D, p. 7). Lastly, the clerk asked whether defendant "wish[ed] to challenge the constitutionality of [his] prior conviction," and, through counsel, defendant answered, "No" (defendant's motion, Ex. D, p. 7). The court then adjudicated defendant a second felony offender.²

On or about December 16, 2024, in reliance on the Supreme Court's decisions in Erlinger v United States, 602 US 821 (2024) and Apprendi v New Jersey, 530 US 466 (2000), defendant filed the instant motion asking this court to set aside his sentence as a second felony drug offender and to resentence him as a first felony offender, contending that under Erlinger, a jury trial was required to determine the tolling periods relevant to his second felony drug offender status.

In papers dated March 13, 2025, the People opposed defendant's motion, arguing that defendant's claim is procedurally barred and meritless because he failed to controvert the allegations in the predicate felony statement and because Erlinger does not compel or authorize this court to overturn Court of Appeals precedent upholding the constitutionality of the felony drug offender statute (People's Memorandum of Law, Points One and Two). The People alternatively contend that should this court determine that Erlinger requires a jury to determine factual issues before sentence, it should conduct such a proceeding to permit a jury to make such a determination here (People's Memorandum of Law, Point Three).

In Reply papers dated April 10, 2025, defendant counters that Erlinger "clarified a broad rule of general applicability" that compels vacatur of his sentence and that he did not waive his constitutional right to have a jury determine the facts that increased his sentencing range (defendant's Reply, Points I and II). He also contends that this court cannot impanel a jury to determine tolling (defendant's Reply, Point III).

Conclusions of Law

The United States Supreme Court's decision in Erlinger is its most recent review of the constitutionality of a state's persistent felony sentencing scheme. In Erlinger, the 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]). At the same time, the Court recognized its 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]).

In New York, a second felony drug offender is someone convicted of a drug felony after having already been convicted of one or more "predicate felony convictions" (Penal Law §§ 70.70[1][b]; 70.06[1]). A predicate felony conviction is a conviction for which the sentence was "imposed not more than ten years before commission of the felony of which the defendant presently stands convicted" (Penal Law § 70.06[1][b][iv]). The ten-year period is calculated without "any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony;" such period will be extended by the length of time of spent incarcerated (Penal Law § 70.06[1][b][v]).

Defendant here argues that the court, in adjudicating him and sentencing him as a second felony offender, "engaged in factfinding beyond identifying a past conviction" and that, "under Apprendi, those findings needed to be made not by a judge, but a unanimous jury beyond a reasonable doubt" (defendant's Memo of Law, p. 13 Heading "B."). He, moreover, contends that "[t]o the extent Criminal Procedure Law section 400.21(7) directs a court to make tolling findings, without a jury, it is unconstitutional" (defendant's Memo of Law, p. 15). In support of his argument, he cites to several recent cases in which 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]).

Several other courts of concurrent jurisdiction, however, have reached the opposite conclusion. In People v 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, *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]). The court in Berry further noted that the Court of Appeals has time and again found New York's persistent felony scheme to be constitutional, and that the exception to Apprendi as found in Almendarez-Torres was applicable (Berry, 2025 Slip Op 50859, at *3).

Berry further noted that, although the Erlinger court maintained the narrow scope of the Almendarez-Torres exception to Apprendi, it also gave no sign that it was expanding Apprendi "to include facts which are part of the mechanical operation of the criminal justice system such as the date that a Defendant may have been incarcerated (or was released from custody) for any constitutionally obtained conviction" (Berry, 2025 Slip Op 50859, at *5-6). This court, consistent with Berry and the aforementioned related cases, also finds 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.

Moreover, regardless of this court's determination that Erlinger does not apply to the tolling provisions of New York's persistent felony statute, defendant in this case waived any challenge to his predicate status at the time that he was arraigned on the predicate felony statement. CPL § 400.21(7)(b) provides that a defendant who fails to controvert a second felony drug offender statement waives any challenge to his recidivist status "unless good cause be shown for such failure to make timely challenge." A hearing is not required if the "uncontroverted allegations in the statement are sufficient to support a finding that the defendant has been subjected to a predicate felony conviction" (CPL § 400.21[4]).

At the time of his plea, the court's clerk read the predicate felony statement into the record, stating, in sum and substance, that defendant had been subjected to a violent predicate felony conviction under Penal Law § 70.06 and was thus a second felony drug offender under Penal Law § 70.71, and that the prior felony conviction was for a violent felony offense as defined by Penal Law § 70.02(1) and CPL § 400.21 (Plea Minutes, pp. 8-9). Specifically, it was alleged that, on January 14, 1991, in New York County, defendant had been convicted of second-degree murder, a violent felony offense under Penal Law § 70.02(1) (Plea Minutes, p. 8). The statement further alleged that the ten-year period referenced in Penal Law § 70.06(1)(b)(v) was extended by his incarceration from March 25, 1991 to April 2, 2014 (Plea Minutes, p. 8). The clerk then informed defendant that if he wanted to dispute the charge in the statement, he would have to identify the charge and, further, that if he did not dispute the charge, it would be deemed admitted by him. When asked whether he wished to dispute the charge, defendant expressly stated, "No" (Plea Minutes, p. 9). When the clerk asked defendant if he wished to dispute the constitutionality of the conviction, defendant expressly stated, "No" (Plea Minutes, p. 9). Finally, when the clerk asked defendant if he was the person named in the statement, defendant expressly stated, "Yes" (Plea Minutes, p. 9).

A defendant can waive a constitutional right provided the record shows "an intentional relinquishment or abandonment of a known right or privilege" (People v Harris, 61 NY2d 9, 17 [1983], quoting Johnson v Zerbst, 304 US 458, 464 [1938]), including the right announced in Erlinger (People v Stanton, 234 AD3d 602, 603 [1st Dept 2025] ["Defendant's claim based on Blakely v Washington (542 US 296, 301 [2004]) and Apprendi v New Jersey (530 US 466 [2000]) that the persistent violent felony offender statute is unconstitutional because it 'does not permit jury fact-finding on issues that increase the penalty beyond the prescribed maximum, specifically facts related to tolling' was also affirmatively waived by counsel, who knowingly relinquished the argument"]; People v Gomez, 236 AD3d 603, 604-605 [1st Dept 2025] ["Defendant did not contest the relevant periods of incarceration as a threshold matter; and, defendant waived the issue and relinquished the argument that the People had not established the dates of incarceration"] [internal citations omitted]; People v Hernandez, --- N.E.3d ----, 2025 NY Slip Op 00904, *3 [Feb 18, 2025] [" defendant did not contest his criminal history, including the relevant periods of incarceration, and therefore we need not consider whether, had he done so, preservation would otherwise be required"]; People v Smith, 2025 NY Slip Op 50913 [Sup Ct Bx Co 2025] [Collins, J]; but see People v Hernandez, 2025 NY Slip Op 25135, *11 [Sup Ct Ny Co 2025] [Newbauer, J]).

To the extent defendant, in his Reply, contends that he could not have intentionally and knowingly waived a constitutional right that he did not know he had, as he pleaded guilty prior to the Supreme Court's decision in Erlinger, his argument is unpersuasive. As defendant himself points out, caselaw predating Erlinger instructed that any fact that increases the penalty for an offense beyond the statutory maximum must be determined by a jury to have been proven beyond a reasonable doubt (see Apprendi, 530 US 466). Thus, defendant was at least on notice that such a constitutional challenge could have been raised.

This court is similarly unpersuaded by defendant's contention that because the court clerk asked defendant if he wished to challenge any "charges" in the statement as opposed to any "allegation" in the statement as stated in CPL § 400.21(3), and did not admit the factual allegations at issue, defendant was "improperly arraigned" on the statement and thus could not have waived his right to a jury trial (see defendant's Reply, pp.14-16). Although defendant cites People v Jurgins, 26 N3d 607, 611 (2015) to support his claim, Jurgins simply explains that challenges to the predicate felony statement are waived when the statutory language is followed, and defendant does not object. While defendant takes issue with the use of the word "charges" instead of "allegation," the minutes of the proceeding demonstrate that defendant was put on notice that the People alleged that he had previously committed a specific felony offense, that he was convicted of that offense, and that he had served an identifiable carceral sentence that extended the ten-year period referenced in Penal Law § 70.06(1)(b)(v). The minutes also demonstrate that defendant, who was at the time represented by competent counsel, was given the opportunity to challenge both the underlying conviction and the constitutionality of that conviction, and, further, that he did neither.

As a result, defendant's failure to object to his predicate status or the terms of related incarceration when given the opportunity, amounted to his knowing, voluntary, and intelligent waiver of his current constitutional claim.

Conclusion

Erlinger does not apply to the tolling provisions of New York's persistent felony statute for the reasons set forth above and, in any event, defendant's failure to raise a constitutional challenge to the predicate felony statement at his sentencing resulted in the waiver of his current Erlinger claim. Accordingly, defendant's CPL § 440.20 motion to set aside the sentence is denied.

This opinion constitutes the Decision and Order of the court.

Dated: September 16, 2025

New York, New York

Ellen Biben, JSC

FOOTNOTES

1.   Defendant was originally sentenced to a determinate fifteen year determinate term of imprisonment with five years of post-release supervision on August 17, 2017 as a second felony offender with a violent predicate based on a prior second-degree murder conviction; on March 6, 2024, upon defendant's motion and with the People's consent, this court vacated that sentence and resentenced defendant as a second-felony offender based on the prior murder conviction noting, however, that the second-degree murder conviction was not a violent felony offense.

2.   Pursuant to Penal Law § 70.71(3)(a), defendant qualified as a second felony drug offender; despite the omission of the word "drug" in the sentencing minutes, defendant was sentenced in accordance with his actual status as a second felony drug offender.

Ellen Biben, J.