People of the State of New York v Robert Moore
Attorneys and Parties
Brief Summary
Criminal sentencing—whether Erlinger v United States requires a jury to find tolling of incarceration time for New York recidivist lookback periods, and whether the People preserved that argument; interaction with Criminal Procedure Law (CPL) 400.15(7) [requires that predicate hearings be conducted before the court without a jury] and CPL 400.16(2) [applies CPL 400.15 procedures to persistent violent felony (PVF) determinations].
On remand, Supreme Court, New York County declined to empanel a jury and resentenced Moore as a second violent felony offender to four years, relying on the 2008 predicate which fell within the 10-year lookback without tolling.
Nothing—judgment of resentence affirmed; the People’s bid to pursue PVF sentencing was rejected as unpreserved.
The Appellate Division held the People failed to preserve their claim that Erlinger is inapplicable because they expressly declined to make that argument below. Preservation principles (including People v Cabrera and People v Bailey) barred review. The court also noted Judiciary Law § 2-b(3) [inherent power to devise new procedures only in unusual circumstances] did not permit a jury for tolling, and that sentencing as a second violent felony offender required no tolling jury finding.
Background
Moore was convicted after jury trial of persistent sexual abuse (Aug. 21, 2018 incident). He was initially sentenced as a persistent violent felony (PVF) offender based on a 1984 burglary and a 2008 attempted rape. On appeal, the People conceded the PVF adjudication was flawed because the predicate statement omitted incarceration tolling needed to pull the 1984 conviction into the 10-year lookback under Penal Law § 70.08(1)(b) [PVF criteria incorporate Penal Law § 70.04(1)(b)] and Penal Law § 70.04(1)(b)(iv)-(v) [10-year lookback extended by excluding any period of incarceration between the prior and present felony]. The Appellate Division vacated the sentence and remanded. Before resentencing, the United States Supreme Court (SCOTUS) decided Erlinger v United States (addressing Armed Career Criminal Act (ACCA) occasions findings). On remand, the People suggested—"in an excess of caution"—that a jury decide tolling but noted there was an argument Erlinger did not apply; they also alternatively sought second violent felony offender sentencing.
Lower Court Decision
Supreme Court (Merchan, J.) declined to empanel a jury, concluding it lacked authority to do so under Judiciary Law § 2-b(3) [inherent power to devise new procedures only in unusual circumstances], and resentenced Moore as a second violent felony offender under CPL 400.15(7) [requires that predicate hearings be conducted before the court without a jury] and CPL 400.16(2) [applies CPL 400.15 procedures to PVF determinations], based on the 2008 predicate, which fell within the lookback without any tolling calculation.
Appellate Division Reversal
Affirmed. The court held the People did not preserve their contention that Erlinger is inapplicable because they declined to argue it at resentencing and assented when the court confirmed they were not pressing that point. Addressing the requested remedy, the court added that Judiciary Law § 2-b(3) did not authorize empaneling a jury for tolling and that no jury was needed to sentence Moore as a second violent felony offender since no tolling was implicated. The court referenced People v Hernandez (declining to reach Erlinger issue due to lack of preservation) to underscore strict adherence to preservation.
Legal Significance
Reaffirms strict preservation requirements for appellate review, including when the appellant is the People and when constitutional questions are implicated. The decision signals that New York courts will not create jury procedures for tolling determinations via Judiciary Law § 2-b(3) absent legislative authorization. It leaves unresolved, on the merits, whether Erlinger requires jury findings for tolling in New York recidivist sentencing, while emphasizing that second violent felony offender adjudications based on a predicate within 10 years need no tolling or jury finding.
Parties must squarely present constitutional and statutory arguments to the sentencing court to preserve them. Courts will not use inherent authority to empanel juries for tolling determinations, and where no tolling is needed, a judge may sentence as a second violent felony offender without a jury. The question of Erlinger’s applicability to tolling remains open in New York absent proper preservation.