Erlinger Does Not Constitutionalize Jury Factfinding for New York Predicate-Felony “Tolling” Under Penal Law § 70.06(1)(b)(v)

1. Introduction

People v Young (2026 NY Slip Op 02883 [1st Dept May 7, 2026]) addresses whether the U.S. Supreme Court’s decision in Erlinger v United States (602 US 821 [2024]) renders unconstitutional New York’s “tolling” mechanism used to decide whether a prior felony conviction falls within the 10-year “lookback” period for second-felony-offender sentencing under Penal Law § 70.06.

The defendant, Aaron Young, pleaded guilty in New York County to robbery in the third degree (a class D felony) and received the mandatory minimum sentence applicable to a second felony offender: 2 to 4 years. The predicate was a 2009 felony, made timely only after adding (“tolling”) periods when Young was incarcerated. On appeal, Young argued that, after Erlinger, a jury—not a judge—must decide the facts underlying tolling, and that New York provides no lawful procedure because CPL 400.15(7)(a) requires predicate hearings “before the court without jury.”

The First Department affirmed, holding that Erlinger does not apply to New York tolling determinations because tolling is an objective, ministerial calculation based on certified incarceration records rather than a fact-intensive inquiry that increases punishment based on contested circumstances of past crimes.

2. Summary of the Opinion

The court held:

  • Although preservation and waiver arguments had “merit” (Young admitted the incarceration periods and stated he was waiving an Erlinger-based jury claim), the court reached the merits.
  • Erlinger v United States requires jury findings for the ACCA’s “different occasions” inquiry because it is “intensely factual” and can require evaluating times, locations, and character of prior offenses.
  • New York’s tolling under Penal Law § 70.06(1)(b)(v) is different: it requires only determining whether the defendant was incarcerated and the dates of incarceration—“rote arithmetic calculation” grounded in official records—without assessing culpability, conduct, or episode-level criminal facts.
  • Therefore, tolling remains within the narrow judicial role permitted under the prior-conviction exception associated with Almendarez-Torres v United States (523 US 224 [1998]) and is not unconstitutional under Apprendi v New Jersey (530 US 466 [2000]) as read by Erlinger.

Result: Young’s plea and second-felony-offender sentence (2 to 4 years) were affirmed.

3. Analysis

3.1 Precedents Cited

Erlinger v United States (602 US 821 [2024])

Erlinger held that the ACCA requirement that prior crimes occurred on “occasions different from one another” must be found by a jury beyond a reasonable doubt. The First Department treated Erlinger as targeting a particular kind of sentencing fact: one that (i) expands exposure to a higher mandatory minimum and maximum, and (ii) is not merely the fact of a prior conviction but a separate, circumstance-based determination about the relationship between convictions (whether they occurred on different “occasions”).

In Young, the court emphasized the majority’s description of the narrowness of its holding and its explanation of the limited judicial role remaining under the prior-conviction exception. The First Department read Erlinger as leaving room for judicial use of “written materials” for discrete record-based determinations (including dates and jurisdictions), and analogized New York tolling to that ministerial category.

Almendarez-Torres v United States (523 US 224 [1998]) and Apprendi v New Jersey (530 US 466 [2000])

Apprendi established the general rule that any fact (other than a prior conviction) increasing the prescribed range of penalties must be found by a jury beyond a reasonable doubt or admitted in a plea. Almendarez-Torres created the “narrow exception” allowing a judge to find the fact of a prior conviction. The Young court treated tolling as closely tied to this exception: it is not a new aggravating fact about the offense; it is a records-based mechanism for deciding whether an existing prior conviction qualifies as a predicate under the statute’s timing rules.

Importantly, Young relied on Erlinger’s own articulation of limits: a judge may determine “what crime, with what elements, the defendant was convicted of,” and may need dates and jurisdiction to understand the conviction’s legal elements. The First Department extended that concept to include incarceration-date arithmetic that determines whether the prior conviction is within the legislatively defined lookback window.

People v Hernandez (43 NY3d 591 [2025])

People v Hernandez is central to two themes in Young:

  • How tolling operates: Hernandez is cited for the description of the 10-year lookback period “extended by any period of incarceration.”
  • Preservation/forfeiture: Hernandez is cited for the proposition that a defendant’s failure to contest the predicate statement and the relevant incarceration periods can preclude later challenges (including constitutional ones) to the predicate determination.

While the First Department did not rest solely on preservation, it used Hernandez to underscore that predicate procedures give defendants an opportunity to controvert allegations—an opportunity Young did not use.

People v Prindle (29 NY3d 463 [2017]); People v Giles (24 NY3d 1066 [2014]); People v Bell (15 NY3d 935-936 [2010], cert denied 563 US 979 [2011]); People v Quinones (12 NY3d 116 [2009]); People v Rivera (5 NY3d 61 [2005]); Portalatin v Graham (624 F3d 69 [2d Cir 2010])

These authorities are cited collectively for the proposition that constitutional challenges to New York’s predicate-felon sentencing frameworks have repeatedly been rejected. In Young, they function as backdrop: New York’s recidivist sentencing structure is not novel and has been sustained against Sixth Amendment and related challenges, largely in reliance on Almendarez-Torres and Apprendi.

Although Young does not re-litigate each case’s holdings in detail, their presence supports the court’s interpretive stance: absent a clear directive that Erlinger reaches tolling, New York’s established predicate framework remains intact.

People v Lopez (85 Misc 3d 171 [Sup Ct, NY County 2024])

People v Lopez is quoted for its reading of Erlinger: some predicate-related factual issues may be straightforward, while others may require significant scrutiny. The First Department used this citation to reinforce the distinction between ACCA “different occasions” disputes (fact-intensive) and New York tolling (record-driven).

People v Wrotten (14 NY3d 33 [2009], cert denied 560 US 959 [2010]) and People v Ricardo B. (73 NY2d 228 [1989])

These cases are invoked in the discussion of whether courts could use “inherent authority” under Judiciary Law 2-b(3) to create a jury procedure to comply with Erlinger. Young notes that New York’s sentencing statute “explicitly prohibits” a jury in predicate hearings, so Judiciary Law 2-b(3) cannot be used to sidestep the statutory command by “devis[ing]” new process. While the panel ultimately held no jury is required for tolling, it still addressed (and rejected) the idea that courts could freely invent an “Erlinger jury” mechanism in this setting.

People v Moore (246 AD3d 528 [1st Dept 2026, Friedman, J., dissenting])

The court quoted the dissent in People v Moore to characterize tolling as “rote arithmetic calculation to be made based on certified public records.” This quote plays a key role in the court’s doctrinal framing: tolling is not a jury-type adjudication of disputed historical events but an administrative computation from official custody records.

3.2 Legal Reasoning

The opinion’s reasoning proceeds in three main steps:

  1. Define the constitutional trigger from Erlinger: The court identifies the constitutional problem in Erlinger as judicial factfinding of a non-conviction fact that increases the statutory penalty range—specifically, whether prior offenses occurred on different “occasions,” a determination requiring evaluation of contextual and relational facts about prior crimes.
  2. Classify New York tolling as categorically different: Under Penal Law § 70.06(1)(b)(v), tolling asks whether the defendant was incarcerated between the prior felony and the current offense and the duration of that incarceration. The court characterizes this as objective and record-based, involving no assessment of culpability or narrative facts.
  3. Fit tolling within the surviving prior-conviction framework: The court reads Erlinger as leaving undisturbed the limited judicial role in determining aspects of prior convictions from records. Because tolling depends on certified incarceration records and arithmetic, the court treats it as part of the ministerial predicate-qualification inquiry rather than an Apprendi-type aggravating fact requiring jury resolution.

A notable feature of Young is its effort to avoid a “constitutional conundrum” argument (jury required but statutorily barred). The court resolves the tension not by creating a procedure, but by narrowing Erlinger’s reach: tolling simply is not the kind of fact Erlinger assigns to the jury.

3.3 Impact

People v Young establishes (at least in the First Department) a clear post-Erlinger rule: New York’s predicate-felony tolling determinations under Penal Law § 70.06(1)(b)(v) remain constitutional and may be made by judges based on official records, without a jury.

Likely effects include:

  • Stability in recidivist sentencing: Defendants cannot leverage Erlinger to invalidate second-felony-offender sentences by arguing that tolling must be jury-tried.
  • Procedural clarity: Courts can continue using existing predicate procedures (statements, admissions, and hearings before the court) without attempting to craft “Erlinger juries” via Judiciary Law 2-b(3).
  • Litigation focus shifts: Challenges will more likely target the accuracy of incarceration records or statutory interpretation (e.g., what counts as “incarcerated for any reason”) rather than Sixth Amendment jury entitlement.
  • Admissions matter: The opinion highlights that a defendant’s failure to controvert predicate allegations—and explicit waiver language—can be potent barriers to appellate constitutional claims.

4. Complex Concepts Simplified

  • Second felony offender (Penal Law § 70.06): A person convicted of a felony who has a qualifying prior felony. The statute imposes higher mandatory minimums and structured ranges.
  • 10-year lookback (Penal Law § 70.06[1][iv]): A prior felony is a predicate only if sentence on that prior felony was imposed within 10 years of the commission of the new felony—subject to tolling.
  • Tolling (Penal Law § 70.06[1][v]): The 10-year clock pauses while the person is incarcerated between the old felony and the new one; those days are added back to extend the lookback window.
  • Predicate felony statement / predicate hearing (CPL 400.21; CPL 400.15): The prosecution files a formal statement listing prior convictions and related allegations (like tolling periods). If the defendant disputes (“controverts”) allegations, the court holds a hearing—by statute, without a jury.
  • Apprendi rule vs. prior-conviction exception: Generally, facts increasing punishment ranges must be found by a jury beyond a reasonable doubt (Apprendi), but the “fact of a prior conviction” may be found by a judge (Almendarez-Torres), an exception criticized but not overruled and treated as still operative in Erlinger.
  • “Different occasions” (ACCA): Under the federal ACCA, the sentencing court must decide whether prior crimes happened on separate occasions. Erlinger says that question is for a jury because it can require resolving contested, circumstance-based facts.

5. Conclusion

People v Young draws a firm line between (a) fact-intensive, circumstance-based predicate inquiries like ACCA’s “different occasions” addressed in Erlinger v United States, and (b) New York’s tolling calculation under Penal Law § 70.06(1)(b)(v), which the court characterizes as an objective, record-based arithmetic task. By holding that Erlinger does not constitutionalize jury factfinding for tolling, the First Department preserves New York’s longstanding recidivist sentencing procedures and avoids the claimed procedural dead-end created by CPL 400.15(7)(a).