The People of the State of New York, Respondent, v. Justin Franklin, Appellant. (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 15, 2026

Appeals (1) from a judgment of the County Court of Rensselaer County (Jennifer Sober, J.), rendered April 9, 2024, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree, and (2) by permission, from an order of said court, entered March 28, 2025, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.

In February 2024, in satisfaction of an indictment alleging that he possessed a loaded firearm and a large capacity ammunition feeding device, defendant pleaded guilty to attempted criminal possession of a weapon in the second degree (see Penal Law §§ 110.00, 265.03[3] ).  The plea agreement contemplated that defendant would be sentenced, as a mandatory persistent violent felony offender, to a term of 12 years to life in prison (see Penal Law §§ 70.02[1][b], [c];  70.08[1], [2], [3][c] ).  Defendant did not object regarding his status as a mandatory persistent violent felony offender.  Instead, at sentencing, he admitted to having two prior qualifying convictions, dating from 2016 and 2002, respectively.  Based on this, County Court determined that defendant was a mandatory persistent violent felony offender.  Again, defendant did not object, and County Court sentenced him in accordance with the plea agreement.

Defendant thereafter moved pursuant to CPL 440.20 to vacate his sentence, contending that his status as a mandatory persistent violent felony offender turned on whether his 2002 conviction was imposed “not more than [10] years before commission of the felony of which [he] presently stands convicted” (Penal Law § 70.04[1][b][iv] ), after accounting for tolling of this 10–year period based on defendant's prior periods of incarceration (see Penal Law § 70.04[1][b][v] ).  According to defendant, pursuant to Erlinger v. United States (602 U.S. 821 [2024] ), the Sixth Amendment to the U.S. Constitution required a jury, not the court, to make the finding that the 10–year period was tolled under section 70.04(1)(b)(v), beyond a reasonable doubt.  County Court denied the motion without a hearing.  Defendant appeals the judgment of conviction and, by permission, the order denying his motion to set aside the sentence as illegal.¹

We affirm.  Defendant's constitutional challenge to his mandatory persistent felony offender status is unpreserved, as he did not contest his criminal history or the relevant periods of incarceration during the plea colloquy, or otherwise contend that a jury was required to determine any facts necessary to establish that status (see People v. Hernandez, 43 NY3d 591, 597–598 [2025];  People v. Terry, 240 AD3d 1128, 1133–1134 [3d Dept 2025], lv denied 44 NY3d 995 [2025];  see also Erlinger v. United States, 602 U.S. at 834 [noting that any fact “freely admitted in a guilty plea” is not subject to the Sixth Amendment jury requirement] ).  We decline defendant's request that we exercise our interest of justice jurisdiction with respect to this issue.  Defendant's remaining contentions have been considered and rejected as without merit or because they have been rendered academic.

Garry, P.J., Clark, Aarons and Ryba, JJ., concur.

ORDERED that the judgment and the order are affirmed.

FOOTNOTES

1.   Defendant's plea included a waiver of his right to appeal.  Because the People concede that the issues raised on this appeal involve the legality of defendant's sentence and survive that waiver, we need not analyze its validity.

Reynolds Fitzgerald, J.