§ 400.20 Procedure for determining whether defendant should be\n sentenced as a persistent felony offender.\n 1. Applicability. The provisions of this section govern the\nprocedure that must be followed in order to impose the persistent felony\noffender sentence authorized by subdivision two of section 70.10 of the\npenal law. Such sentence may not be imposed unless, based upon evidence\nin the record of a hearing held pursuant to this section, the court (a)\nhas found that the defendant is a persistent felony offender as defined\nin subdivision one of section 70.10 of the penal law, and (b) is of the\nopinion that the history and character of the defendant and the nature\nand circumstances of his criminal conduct are such that extended\nincarceration and lifetime supervision of the defendant are warranted to\nbest serve the public interest.\n 2. Authorization for hearing. When information available to the\ncourt prior to sentencing indicates that the defendant is a persistent\nfelony offender, and when, in the opinion of the court, the available\ninformation shows that a persistent felony offender sentence may be\nwarranted, the court may order a hearing to determine (a) whether the\ndefendant is in fact a persistent felony offender, and (b) if so,\nwhether a persistent felony offender sentence should be imposed.\n 3. Order directing a hearing. An order directing a hearing to\ndetermine whether the defendant should be sentenced as a persistent\nfelony offender must be filed with the clerk of the court and must\nspecify a date for the hearing not less than twenty days from the date\nthe order is filed. The court must annex to and file with the order a\nstatement setting forth the following:\n (a) The dates and places of the previous convictions which render the\ndefendant a persistent felony offender as defined in subdivision one of\nsection 70.10 of the penal law; and\n (b) The factors in the defendant's background and prior criminal\nconduct which the court deems relevant for the purpose of sentencing the\ndefendant as a persistent felony offender.\n 4. Notice of hearing. Upon receipt of the order and statement of the\ncourt, the clerk of the court must send a notice of hearing to the\ndefendant, his counsel and the district attorney. Such notice must\nspecify the time and place of the hearing and the fact that the purpose\nof the hearing is to determine whether or not the defendant should be\nsentenced as a persistent felony offender. Each notice required to be\nsent hereunder must be accompanied by a copy of the statement of the\ncourt.\n 5. Burden and standard of proof; evidence. Upon any hearing held\npursuant to this section the burden of proof is upon the people. A\nfinding that the defendant is a persistent felony offender, as defined\nin subdivision one of section 70.10 of the penal law, must be based upon\nproof beyond a reasonable doubt by evidence admissible under the rules\napplicable to the trial of the issue of guilt. Matters pertaining to\nthe defendant's history and character and the nature and circumstances\nof his criminal conduct may be established by any relevant evidence, not\nlegally privileged, regardless of admissibility under the exclusionary\nrules of evidence, and the standard of proof with respect to such\nmatters shall be a preponderance of the evidence.\n 6. Constitutionality of prior convictions. A previous conviction in\nthis or any other jurisdiction which was obtained in violation of the\nrights of the defendant under the applicable provisions of the\nConstitution of the United States may not be counted in determining\nwhether the defendant is a persistent felony offender. The defendant\nmay, at any time during the course of the hearing hereunder controvert\nan allegation with respect to such conviction in the statement of the\ncourt on the grounds that the conviction was unconstitutionally\nobtained. Failure to challenge the previous conviction in
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