Decided and Entered: August 13, 2026

Ind No. 1019/16|1019/16|Appeal No. 6690|Case No. 2025-02135|

Before: Kennedy, J.P., Scarpulla, Mendez, Rodriguez III, Rosado, JJ.

[*1]

Order, Supreme Court, New York County (Angela J. Badamo, J.), entered on or about March 14, 2025, which denied defendant's CPL 440.20 motion to set aside his sentence imposed pursuant to an underlying judgment, same court (Bonnie Wittner, J. at trial; Mark Dwyer, J. at sentencing), rendered April 9, 2018, as amended January 22, 2024, convicting him of robbery in the second degree (two counts), and sentencing him, as a persistent violent felony offender, to an aggregate term of 17 years to life, unanimously affirmed.

Prior to defendant's sentencing, the People filed a Predicate Felony Statement that alleged two predicate violent felony convictions: (1) a July 3, 1993 conviction of attempted robbery in the first degree; and (2) a March 26, 2002 conviction of sexual abuse in the first degree. The Statement further alleged that the 10-year lookback period was tolled by defendant's periods of incarceration.

At his arraignment on the Predicate Felony Statement, defendant disputed the allegations. The People then submitted certified copies of defendant's certificates of conviction and a certified copy of defendant's Department of Corrections and Community Supervision records. At a subsequent court date, defendant was deemed a persistent violent felony offender and ultimately sentenced as noted above.

Defendant did not raise any claims regarding his predicate felony offender adjudication, and this Court affirmed defendant's conviction (People v Allen, 189 AD3d 463 [1st Dept 2020], lv denied 36 NY3d 1055 [2021]).

On September 13, 2024, defendant, through assigned appellate counsel, moved to set aside his sentence pursuant to CPL 440.20. Defendant argued, among other things, that his sentence was unlawful under Erlinger v United States (602 US 821 [2024]) because he was sentenced as a persistent violent felony offender without a jury determination that the relevant 10-year period was tolled by his incarceration. The People opposed, arguing that even if Erlinger applied to tolling determinations, it articulated a new rule that does not apply retroactively to defendant's conviction. The People did not make a clear argument about whether Erlinger applied and instead highlighted that trial courts have reached inconsistent conclusions on the issue.

The motion court agreed with defendant, concluding that Erlinger did apply to a tolling determination, but denied defendant's motion because it concluded that Erlinger established a new rule, which cannot be applied retroactively to defendant's conviction, rendered prior to Erlinger.

[*2]

On appeal, the People concede that they did not preserve the issue of whether Erlinger applies to New York's tolling provisions under Penal Law § 70.06(1)(b)(v). We reject the People's position that an interest of justice determination can be reached, which is appropriate only in connection with "[a] reversal or a modification of a judgment, sentence or order" (CPL 470.15[3][c]) on an issue "which may have adversely affected" defendant as appellant (CPL 470.15[1]).

Notwithstanding the foregoing, the lower court's finding that Erlinger applies to Penal Law § 70.06(1)(b)(v) must nevertheless be addressed and corrected on this appeal in light of our recent decision in People v Young (--AD3d--, 2026 NY Slip Op 02883 [1st Dept 2026]), which held that, given the ministerial nature of the tolling period calculation, New York's tolling provision is not unconstitutional under Erlinger.

This intervening precedent compels us to address the issue as a matter of law, despite issues of preservation or application of People v LaFontaine (92 NY2d 470, 473-474 [1998]), and is necessary to avoid a legally erroneous result on the existing record (see People v Concepcion, 17 NY3d 192, 201 [2011] [noting that CPL 470.15 may "cut against 'sensible management' of litigation"]). Indeed, LaFontaine and its progeny is distinguishable because those cases did not address CPL 470.15 in the context of intervening precedent that resolves both adverse and nonadverse findings against defendant (see generally LaFontaine, 92 NY2d 470; Concepcion, 17 NY3d 192; People v Gerard, 94 AD3d 592, 593 [1st Dept 2012]). This Court cannot ignore the now settled precedent in this Department, which clearly invalidates the motion court's conclusion that Erlinger applies in the first instance.

In light of our holding that Erlinger is inapplicable to the tolling provision, it is unnecessary for us to determine whether or not Erlinger is retroactive. Doing so would lead to an advisory opinion on a moot issue no longer applicable here (see generally Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 810-811 [courts are "prohibited from giving advisory opinions or ruling on "academic, hypothetical, moot, or otherwise abstract questions"] [internal quotation marks omitted], cert denied 540 US 1017 [2003]), and will have no "immediate and practical consequences to the parties" herein (People ex rel. Wells v DeMarco, 168 AD3d 31, 37 [2d Dept 2018] [internal quotation marks omitted]).

Accordingly, defendant was properly sentenced as a persistent violent felony offender. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: August 13, 2026