Decided and Entered: September 24, 2026

Ind No. 846/18|846/18|Appeal No. 6493-6494|Case No. 2019-3513 2025-00761|

Before: Kennedy, J.P., Gesmer, González, Rosado, Chan, JJ.

[*1]

Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered March 8, 2019, convicting defendant, after a nonjury trial, of assault in the second degree unanimously affirmed. Order, same court and Justice, entered on or about December 3, 2024, which granted defendant's CPL 440.20 motion to set aside his original sentence as a persistent violent felony offender and directed resentencing as a persistent non-violent felony offender, unanimously reversed, on the law, the order vacated, and the matter remanded for resentencing as a persistent violent felony offender.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (People v Danielson, 9 NY3d 342, 348-349 [2007]; see also People v Baque, 43 NY3d 26 [2024]). There is no basis for disturbing the trier of fact's credibility determinations, including those relating to the victim's characterization of his injury. The evidence supported the conclusion that the victim suffered substantial pain as the result of being hit in the neck by a hard metal rod forcefully swung by defendant. Even relatively minor injuries (see People v Chiddick, 8 NY3d 445, 447 [2007]) that do not require medical treatment (see People v Guidice, 83 NY2d 630, 636 [1994]) may meet the statutory threshold for physical injury. Here, while the victim declined medical assistance, he treated his injury with ice and over-the-counter pain medication. He described suffering "a lot of pain" and "a lot of soreness," which continued for approximately two weeks as a result of the attack.

[*2]

Defendant's claim that he was "compelled" to appear before the court, as trier of fact, in prison clothing lacks merit. Counsel's statements that defendant was "ready to proceed," even though defendant was wearing prison attire, waived any claim that defendant was deprived of a fair trial by appearing before the judge in prison-issued clothing (see People v Hodgson, 220 AD3d 626, 626 [1st Dept 2023], lv denied 41 NY3d 983 [2024]; People v Jones, 187 AD3d 612, 613-614 [1st Dept 2020], lv denied 36 NY3d 973 [2020]). His claim is also unpreserved (see People v Ellis, 34 NY3d 1092, 1092-1093 [2019]). Nor did he object on constitutional grounds to appearing in prison clothes (see People v Oliveri, 29 AD3d 330, 332 [1st Dept 2006], lv denied 7 NY3d 760 [2006]). As an alternative holding, we reject his claim on the merits. "[A]lthough the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation" (Estelle v Williams, 425 US 501, 512-513 [1976]). Further, defendant was not appearing before a jury, and as the trial judge explained, he would not be prejudiced by defendant appearing in jail clothes because he was aware that defendant was incarcerated.

Defendant also claims that, in light of Erlinger v United States (602 US 821 [2024]), the sentencing court was constitutionally prohibited from making a judicial determination of defendant's prior periods of incarceration relevant to tolling under Penal Law § 70.04(1)(b)(v).By predicate felony statement, the People alleged that defendant had two prior violent felony convictions: a 1987 first-degree robbery conviction and a 1996 second-degree robbery conviction. The statement set forth multiple periods of incarceration that tolled the ten-year lookback period under Penal Law § 70.04(1)(b)(iv) and (v). After defendant declined to dispute any portion of the predicate statement, the court adjudicated defendant a persistent violent felony offender and imposed a sentence of 18 years to life.

Defendant moved under CPL 440.20 to set aside the persistent violent felony offender sentence, arguing that the predicate felony statement was facially insufficient because it omitted periods of incarceration necessary to toll the statutory ten-year lookback period. Defendant contended that, under Erlinger, a jury was required to make the factual determination of whether any tolling finding would bring his prior conviction within the lookback window.

[*3]

The court granted defendant's CPL 440.20 motion and concluded that the initial predicate statement was facially insufficient and that, pursuant to Erlinger, tolling determinations must be made by a jury. The court held that it could "neither determine, nor convene a jury to determine[,] that defendant was previously incarcerated at a particular time and place in an effort to enhance his sentencing." It resentenced defendant as a persistent non-violent felony offender to a term of 15 years to life.

The People cross-appeal from the court's order granting defendant's CPL 440.20 motion to set aside his original sentence as a persistent violent felony offender pursuant to Erlinger. Defendant challenges the court's order resentencing him as a persistent non-violent felony offender.

In Erlinger, the United States Supreme Court held that only a jury may find facts that increase the prescribed range of penalties to which a defendant is exposed (602 US 821, 834 [2024]). The Court relied extensively on its prior decision in Apprendi v New Jersey, which determined that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (530 US 466, 490 [2000]). However, Erlinger did not disturb the long-standing rule, recognized in Almendarez-Torres v United States (523 US 224 [1998]), that the Sixth Amendment "permits a judge to find what [prior] crime, with what elements, the defendant was convicted of" (Erlinger, 602 US at 838, quoting Mathis v United States, 579 US 500, 511-512 [2016]; see also Apprendi, 530 US at 490). The sentencing in Erlinger was deemed problematic because the judge made factual findings beyond just the fact of a prior conviction, including findings that the prior offenses "occurred on at least three separate occasions" (Erlinger, 602 US at 838-839).

As this Court found in People v Young (—AD3d—, 2026 NY Slip Op 02883 [1st Dept 2026]), Erlinger does not apply to the tolling protocol contained in New York's predicate felony sentencing statutes. These involve a "rote arithmetic calculation to be made based on certified public records" (Young, 2026 NY Slip Op 02883, *8, quoting People v Moore, 246 AD3d 528, 540 [1st Dept 2026, Friedman, J., dissenting]). Such objective determinations fall within the narrow Almendarez-Torres exception permitting judicial determination of "the fact of a prior conviction" and associated ministerial facts such as dates.

Here, the sentencing court erred in holding that tolling findings must be made by a jury and that it therefore could not sentence defendant as a persistent violent felony offender. As in Young, the tolling determination at issue required the court to review official admission and release records as well as calculate the periods during which defendant was confined. This administrative determination does not implicate the Sixth Amendment under Erlinger but rather falls within the Almendarez-Torres exception.

[*4]

Accordingly, we conclude that the relevant tolling provision under Penal Law § 70.04(1)(b)(v) has not been rendered unconstitutional by Erlinger, and that the sentencing court was permitted to determine the tolling periods necessary to establish defendant's eligibility for persistent violent felony offender sentencing.

Defendant's challenge to the tolling determination also falls short because he declined to controvert any allegation in the predicate felony statement, including his incarceration periods. His failure to dispute those allegations constituted an admission under CPL 400.21(3). This admission relieved the court of any obligation to submit those issues to a jury.

Since Erlinger does not require jury determination of tolling, the statutory directive that predicate hearings "must be before the court without a jury" (CPL 400.15[7][a]) presents no constitutional difficulty. As Young explained, Erlinger does not require a jury determination of tolling periods in the first instance (Young, 2026 NY Slip Op 02883, *7).

We have considered defendant's remaining arguments and find them unavailing, including his claim that the sentence was excessive.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 24, 2026