The People, etc., appellant, v. Malik Gardner, respondent. (2026)

Argued—May 21, 2026

OPINION & ORDER

APPEAL by the People from a resentence of the Supreme Court (Gia L. Morris, J.), imposed April 11, 2025, in Queens County, upon the granting of the defendant's motion pursuant to CPL 440.20 to set aside a sentence of the same court imposed July 12, 2019, upon his conviction of criminal possession of a weapon in the second degree, upon his plea of guilty.

LANDICINO, J.

This appeal presents the Court with the opportunity to resolve the question of whether, under all circumstances, the United States Supreme Court's decision in Erlinger v. United States (602 U.S. 821) requires a jury, rather than a judge, to determine prior to the imposition of a sentence whether a defendant committed a predicate felony within the limitations period set forth in the second felony offender and second violent felony offender statutes.  We hold that it does not.

Factual and Procedural History

According to the People, on September 26, 2018, at approximately 6:00 p.m., the defendant was observed by police officers in the driver's seat of a vehicle that was parked in front of a residence located in Queens County.  The People contended that the officers who approached the vehicle detected a strong odor of marijuana emanating from the vehicle and observed a bag on the front passenger seat with the butt of a pistol protruding from it.  According to the People, police officers recovered a .22 caliber semi-automatic pistol that was loaded with one round of .22 caliber ammunition in the chamber, as well as four plastic bags containing approximately four ounces of marijuana.  They also reportedly recovered a .45 caliber semi-automatic pistol and one magazine loaded with seven rounds of .45 caliber ammunition from inside the trunk of the vehicle.

The defendant was charged in Queens County with two counts of criminal possession of a weapon in the second degree under Penal Law § 265.03(3), two counts of criminal possession of a weapon in the second degree under Penal Law § 265.03(1)(b), two counts of criminal possession of a weapon in the third degree (id. § 265.02[1] ), and one count of criminal possession of marijuana in the fourth degree (Penal Law former § 221.15).

On May 17, 2019, the defendant pleaded guilty to one count of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) as part of a plea agreement wherein the defendant would receive, in exchange for his plea of guilty, a term of imprisonment of seven years to be followed by five years of postrelease supervision.  During the plea proceedings, the defendant confirmed that he had discussed the case fully with his counsel and was pleading guilty of his own free will.  Before the Supreme Court accepted the defendant's plea, and after the court informed the defendant of the rights that he was waiving by pleading guilty, there was a brief colloquy regarding the defendant's status as a predicate felony offender.  The People stated that the defendant had “a previous conviction of a crime [under Penal Law § ] 265.03(2), Criminal Possession of a Weapon in the Second Degree on May 1, 2006 in Queens County [with a] sentence thereupon [of] five years imprisonment.” ¹  The defendant confirmed that he had that prior conviction and, although the prior crime and present crime were violent felonies (see Penal Law § 70.02[1][b] ), the court determined that the defendant “must be sentenced as a second felony offender” rather than a second violent felony offender.²  The court thereafter accepted the defendant's plea of guilty.

At sentencing proceedings on July 12, 2019, defense counsel corrected a misstatement in the probation report, but indicated that there was no reason that the promised sentence could not be imposed at that time.  The Supreme Court then sentenced the defendant to the negotiated term of “[s]even years jail five years post-release supervision.”

In November 2023, the defendant moved pursuant to CPL 440.20(1) to vacate his sentence, contending that resentencing was required because there was a discrepancy between the order of commitment, which indicated that he was convicted as a second felony offender, and the sentence imposed during the sentencing proceedings, when the Supreme Court did not specifically indicate that it was sentencing the defendant as a second felony offender.  In response, the People contended that the defendant had been sentenced as a second felony offender, but agreed that he should be resentenced because the court should have sentenced the defendant as a second violent felony offender rather than a second felony offender.  However, the defendant argued in a supplemental affirmation that the court could not resentence him as a second violent felony offender because there was a question as to whether the defendant's prior conviction occurred within 10 years of the commission of the instant offense (see Penal Law §§ 70.04[1][b][iv], [v] ) and that the issue had to be determined by a jury, rather than a judge, in accordance with Erlinger v. United States (602 U.S. 821).  According to the defendant, the court was prohibited from empaneling a jury for this sentencing question under CPL 400.15(7)(a), which provides, in relevant part, that where the defendant controverts an allegation regarding his status as a second violent felony offender, a hearing “must be before the court without jury.”  The People opposed the arguments raised in the defendant's supplemental affirmation.

In an order dated November 21, 2024, the Supreme Court granted the defendant's motion to vacate his sentence and resentence him as a first-time violent felony offender.³  The court found that, pursuant to Erlinger, a jury was required to make the necessary findings to determine whether the defendant was a second felony offender, violent or otherwise.  As to whether a jury could be empaneled for that purpose, the court found that it was prohibited from doing so under CPL 400.15(7)(a) and that it lacked such authority under Judiciary Law § 2–b(3).  Consequently, the court determined that the defendant would be resentenced as a first-time violent felony offender, but that the agreed-upon sentence of a term of imprisonment of seven years followed by five years of postrelease supervision remained proper.  The court vacated the defendant's initial sentence.

On April 11, 2025, the Supreme Court resentenced the defendant to a term of imprisonment of seven years followed by five years of postrelease supervision as a first-time felony offender.  The People appeal.

Analysis

Under Penal Law § 70.06, a defendant must be sentenced as a second felony offender if, inter alia, they have “previously been subjected to one or more predicate felony convictions” (id. § 70.06[1][a] ) and the sentence upon such prior conviction was “imposed not more than ten years before commission of the felony of which the defendant presently stands convicted” (id. § 70.06[1][b][iv] ).

“In calculating the ten year period ․ 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 shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration” (id. § 70.06[1][b][v] ).

“These provisions establish, in effect, a 10–year lookback period, measured backward from the date of the defendant's commission of the current felony, that is then extended by any period of incarceration that the defendant had served between his prior felon[y] and his current one” (People v. Young, _AD3d_, 2026 N.Y. Slip Op 02883, *1 [1st Dept May 7, 2026] [internal quotation marks omitted], citing People v. Hernandez, 43 NY3d 591, 596).  “This extension of the lookback period is often described as ‘tolling’ ” (id.).  In this case, as discussed above, the Supreme Court was confronted with both the second felony offender statute and the second violent felony offender statute, based on the court's own statements on the record.  Notably, both the second violent felony offender statute and the second felony offender statute contain identical language regarding the 10–year lookback period and tolling (see Penal Law §§ 70.04[1][b][iv], [v];  70.06[1][b][iv], [v] ).

The question presented on this appeal is whether a jury, rather than a judge, is constitutionally required to make a finding as to whether the defendant was convicted of a prior felony within 10 years of the commission of the instant offense, taking into account whether any periods of time in which the defendant was incarcerated should extend the 10–year lookback period.⁴

“[T]o guard against a spirit of oppression and tyranny on the part of rulers, and as the great bulwark of [our] civil and political liberties, trial by jury has been understood to require that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours” (Apprendi v. New Jersey, 530 U.S. 466, 477 [citation, emphasis, and internal quotation marks omitted] ).

As such, “[t]he Sixth and Fourteenth Amendments [of the United States Constitution] guarantee criminal defendants in state courts ‘the right to a speedy and public trial, by an impartial jury.’  To satisfy that right, the People must prove each element of a crime beyond a reasonable doubt” (People v. Prindle, 29 NY3d 463, 466).  Nonetheless, after a defendant's conviction, the right to a jury during sentencing is somewhat circumscribed.  “Once a defendant has been found guilty of a crime—i.e., once a jury has made the requisite factual findings establishing the elements of the crime—judges have traditionally been entrusted with substantial discretion to impose the appropriate sentence” (Erlinger v. United States, 602 U.S. at 875 [Jackson, J., dissenting] [emphasis omitted] ).  “[N]othing in [the Sixth Amendment's] history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute” (Apprendi v. New Jersey, 530 U.S. at 481).  “A common theme of the Apprendi decisions is that sentencing schemes allowing for such discretion are permissible under the Sixth Amendment” (People v. Quinones, 12 NY3d 116, 129).  The question is, then, what Sixth and Fourteenth Amendment jury protections apply at sentencing when the People seek to enhance a defendant's sentence beyond the range prescribed by the statute under which the defendant was convicted.

The analysis begins with the general rule as to when a jury is constitutionally required to make findings during sentencing.  In Apprendi v. New Jersey (530 U.S. at 490), the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the [prescribed range of penalties] for a crime ․ must be submitted to a jury, and proved beyond a reasonable doubt” (see Erlinger v. United States, 602 U.S. at 833).  A narrow exception to the Apprendi rule exists:  a judge may properly determine, without a jury, that the defendant was previously convicted of a crime—the “fact of prior conviction” (Apprendi v. New Jersey, 530 U.S. at 490;  see Almendarez–Torres v. United States, 523 U.S. 224, 246–247).  This is because “a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees” (Jones v. United States, 526 U.S. 227, 249), and a defendant's recidivism—“a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence” (Almendarez–Torres v. United States, 523 U.S. at 243)—“ ‘does not relate to the commission of the offense’ ” (id. at 244, quoting Graham v. West Virginia, 224 U.S. 616, 629).

In New York, the Court of Appeals has consistently held that a jury need not make findings as to whether the defendant is subject to New York's predicate felony offender statutes, and that those statutes are constitutional under Apprendi and its progeny (see People v. Prindle, 29 NY3d 463;  People v. Bell, 15 NY3d 935, 936;  People v. Porto, 16 NY3d 93, 102;  People v. Quinones, 12 NY3d 116;  People v. Rivera, 5 NY3d 61, 67;  People v. Rosen, 96 N.Y.2d 329, 335;  see also People v. Dingle, 147 AD3d 1080, 1081;  People v. Minard, 125 AD3d 691, 692).

In Erlinger, the United States Supreme Court analyzed a provision of the Armed Career Criminal Act [ACCA]—a federal sentencing enhancement statute—under the standard introduced in Apprendi.  The ACCA requires the prosecution to prove that predicate offenses are “committed on occasions different from one another” (18 USC § 924[e][1] ).  In Erlinger, the Court determined that a jury rather than a judge must “resolve ACCA's occasions inquiry unanimously and beyond a reasonable doubt” (602 U.S. at 835).  The Court reasoned that the question of whether predicate offenses were committed on different occasions is a “fact-laden task,” requiring the factfinder to grapple with factors such as whether the crimes were “committed close in time,” “the proximity of their locations,” and whether the offenses were “similar or intertwined in purpose and character” (id. at 834 [alterations and internal quotation marks omitted] ).  The Court also noted that its decision was “on all fours with Apprendi ” (id.).  Recognizing that there is a narrow exception to the Apprendi rule, the Erlinger Court explained that, under the Almendarez–Torres exception,

“a court may need to know the jurisdiction in which the defendant's crime occurred and its date in order to ascertain what legal elements the government had to prove to secure a conviction in that place at that time.  And to answer those questions, a sentencing court may sometimes consult ‘a restricted set of materials,’ often called Shepard documents, that include judicial records, plea agreements, and colloquies between a judge and the defendant” (Erlinger v. United States, 602 U.S. at 839, quoting Descamps v. United States, 570 U.S. 254, 262).

However, “a judge may not use information in Shepard documents to decide ‘what the defendant ․ actually d[id],’ or the ‘means' or ‘manner’ in which he committed his offense in order to increase the punishment to which he might be exposed” (id. at 839–840, quoting Mathis v. United States, 579 U.S. 500, 510–511).

Contrary to the defendant's contention and the determination in the order dated November 21, 2024, the decision in Erlinger does not alter the landscape of New York's predicate felony offender statutes, the constitutionality of which is well-settled.  The defendant in this case was not constitutionally entitled to have a jury determine the length of the previous period of incarceration for the purposes of tolling the 10–year lookback period (see Penal Law §§ 70.04[1][b][v], 70.06[1][b][v] ).  The provision of the ACCA at issue in Erlinger is fundamentally different than any provision of New York's second felony and second violent felony offender statutes in that the ACCA requires a factual determination about the defendant's actions and the circumstances surrounding the manner in which the predicate offenses were committed.  Because the ACCA requires that predicate offenses were “committed on occasions different from one another” (18 USC § 924[e][1] ), the specific circumstances under which the predicate crimes were committed are necessarily placed at issue.  “Presented with evidence about the times, locations, purpose, and character of those crimes, a jury might have concluded that some or all occurred on different occasions” (Erlinger v. United States, 602 U.S. at 834, 835).

Conversely, the tolling calculation under the subject predicate felony offender statutes does not involve an inquiry into the underlying facts that led to the predicate convictions.  Rather, the court is required to determine the dates that a defendant entered and was discharged from a correctional facility upon serving a prior sentence (see People v. Young, _AD3d_, 2026 N.Y. Slip Op 02883).  These ministerial calculations do not implicate any factual determination as to the defendant's actions during a prior crime of conviction and are akin to the “fact of prior conviction” (Apprendi v. New Jersey, 530 U.S. at 490).  To the extent that a sentencing court must divine the date of the commission of the present offense in order to determine the bounds of the 10–year lookback period, it is constitutionally permitted to use Shepard documents to ascertain “the jurisdiction in which the defendant's crime occurred and its date” (Erlinger v. United States, 602 U.S. at 839).  Such an inquiry certainly does not impermissibly invite the sentencing court to “try to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct” (Descamps v. United States, 570 U.S. at 269).  A jury is not required to resolve an inquiry that “does not relate to the commission of the offense itself” (Apprendi v. New Jersey, 530 U.S. at 496 [internal quotation marks omitted] ).  To protect the rights of a defendant during sentencing as a predicate felony offender, New York's procedural rules provide for a hearing before the judge when the defendant “controverts an allegation” in the predicate felony statement (CPL 400.21).  That is all that is required—the Constitution does not entitle a defendant to a jury determination on the issue of whether a predicate offense was committed within 10 years of the commission of the instant offense, including any calculation regarding the periods during which the defendant was incarcerated.

“Unlike juries, judges have the competency, wherewithal, and flexibility to assess facts related to defendants' past crimes and to handle, in a balanced way, the various practical problems that reliance on that kind of evidence raises” (Erlinger v. United States, 602 U.S. at 897 [Jackson, J., dissenting] ).  And “it is wildly inefficient for our system to try to fit the square peg of factfinding related to past criminality for sentencing purposes into the round hole of the existing processes that govern jury determinations” (id. at 893 [Jackson, J., dissenting] ).  However, it must be noted that this decision is not based on the interests of judicial economy or any other practical considerations.  Rather, it is grounded entirely on constitutional theory as interpreted by the Sixth Amendment jurisprudence of the United States Supreme Court.  As discussed at length above, a plain reading of Apprendi and its progeny, including Erlinger, allows a judge to make the requisite findings under the second felony and second violent felony offender statutes without a jury.

As such, the Supreme Court here erred in holding that a jury was required to make a finding as to whether the prior “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];  see People v. Young, _AD3d_, 2026 N.Y. Slip Op 02883).

In light of this determination, we need not consider the parties' contentions as to whether the Supreme Court would have been empowered to empanel a jury to make a tolling calculation under CPL 400.15(7)(a).

Accordingly, the resentence is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.

DUFFY, J.P., CHRISTOPHER and LOVE, JJ., concur.

ORDERED that the resentence is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.

ENTER:

Darrell M. Joseph

Clerk of the Court

FOOTNOTES

1.   1 The People did not file a predicate violent felony statement pursuant to CPL 400.15.  Rather, they filed a special information accusing the defendant of a predicate violent felony.  That is not an issue on this appeal.

2.   2 Although the parties assert on appeal that the defendant was initially sentenced as a second violent felony offender, the transcript of the plea proceeding demonstrates that the Supreme Court designated the defendant a “second felony offender.”  In their motion papers submitted in the Supreme Court, the parties both recognized that the defendant was designated a second felony offender, not a second violent felony offender, as reflected in the record.

3.   3 In the order dated November 21, 2024, the Supreme Court found that the defendant satisfied the requirements of CPLR 1012(b) and Executive Law § 71 as the “defendant notified the New York State Attorney General ․ in September 2024 regarding his amended motion made pursuant to the Erlinger decision.”  The court further noted that, “[i]n a letter dated October 8, 2024, [the New York State Attorney General] declined to intervene or file papers pertaining to this matter.”  The parties do not contest those findings on appeal.

4.   4 This Court has not had the opportunity to address whether Erlinger has rendered unconstitutional New York's predicate felony sentencing statutes.  It appears that in every prior case before this Court where Erlinger was implicated, the issue was either unpreserved for appellate review or barred by a valid waiver of appeal (see e.g. People v. Robinson, 248 AD3d 836;  People v. Glover, 247 AD3d 789;  People v. Castro, 247 AD3d 780;  People v. Mejia, 246 AD3d 828).  Those concerns are not present here, since the parties' arguments on the issue were properly preserved in the context of the defendant's motion to vacate his sentence and the People have not invoked a waiver of appeal by the defendant.