AD4: "second child sexual assault felony offender statement" timely in plea situation if it affords defendant opportunity to be heard

People v Armbruster, 2006 NY Slip Op 07055 [available here]

A relatively recent flavor of persistent felony sentencing is found in CPL 400.19[2], that allows harsher penalties for those defendants previously convicted of felony sexual assault against a child. Before seeking the harsher sentence, the People must file a statement "at any time before trial commences setting forth the date and placed of each [such] alleged predicate felony conviction . . . and a statement whether the defendant was eighteen years of age or older at the time of the commission of the predicate felony." (Armbruster, 2006 NY Slip Op 07055.) That's fine if you are standing trial for the present offense--but what if a defendant pleads guilty? The defendant in Armbruster argued that the statement must be filed before "the entry of a guilty plea." (Id.) The Fourth Department, while acknowledging that the statute did not provide for the guilty plea scenario, disagreed with defendant and instead concluded "that the CPL 400.19 statement is timely filed in the event that there is a guilty plea if it is filed within a sufficient time before the imposition of sentence to afford the defendant notice and an opportunity to be heard." (Id.) Even if the statement was required to be filed before entry of the guilty plea, the Fourth Department would have found the error harmless; importing reasoning employed to resolve this issue in more established recidivist sentence procedures, the Court held "'[w]here, as here, the statutory purposes for filing a predicate statement (i.e. [,] apprising the court of the prior conviction and affording defendant notice and an opportunity to be heard in connection with the predicate felony) are satisfied, strict compliance with [CPL 400.19] is not required.'" (Id. at __ [citations omitted].)