People v. Moore: Prosecutorial Non-Preservation of Erlinger Inapplicability Bars Appellate Review of Recidivist-Sentencing Theory

Court: Appellate Division, First Department
Date: February 17, 2026
Citation: 2026 NY Slip Op 00859

1. Introduction

People v Moore arises from resentencing proceedings after defendant Robert Moore’s conviction for persistent sexual abuse (Penal Law § 130.53) based on an August 21, 2018 incident. At the initial sentencing, Moore was adjudicated a persistent violent felony (PVF) offender and received a sentence of four years to life. On direct appeal, however, the People conceded that the PVF predicate felony statement omitted necessary periods of incarceration (“tolling”) needed to bring an older conviction within the statutory lookback period; the First Department vacated the sentence and remanded for further proceedings (People v Moore, 228 AD3d 491 [1st Dept 2024]).

Between remand and resentencing, the U.S. Supreme Court decided Erlinger v United States (602 US 821 [2024]), catalyzing litigation over whether the jury-trial right extends to certain recidivist-sentencing factfinding. The key dispute at resentencing was whether a judge could determine tolling periods to support PVF sentencing, or whether Erlinger required a jury for those determinations—despite New York’s statutory scheme directing that predicate determinations be made “before the court without a jury” (CPL 400.15[7], as incorporated for PVF purposes).

Parties: The People (appellant), Robert Moore (defendant-respondent), and the District Attorneys Association of the State of New York (amicus).

2. Summary of the Opinion

The First Department affirmed the judgment of resentence imposing a four-year determinate term as a second violent felony offender. The court held that the People’s appellate contention—namely, that Erlinger v United States does not apply and therefore PVF sentencing should proceed without a jury—was unpreserved because the prosecutor declined to press that argument at resentencing. The court further noted that Supreme Court could not invoke “inherent power” under Judiciary Law § 2-b(3) to empanel a jury to decide tolling, because the statute authorizes procedural innovation only in “unusual circumstances” and “exceptional cases,” which were not present.

3. Analysis

3.1 Precedents Cited

A. Preservation doctrine: the decisive line of authority

  • People v Cabrera, 41 NY3d 35 (2023): The majority treats Cabrera as the controlling articulation of preservation’s purposes: (1) avoiding/correcting error at the earliest opportunity and (2) ensuring a developed record reflecting a “full airing” of relevant issues. The court invokes Cabrera to justify refusing merits review where the People expressly declined to litigate the very legal question they later sought to win on appeal.
  • People v Bailey, 32 NY3d 70 (2018): Quoted for the “sit[] idly by” principle—no party may allow an asserted error to go unaddressed in the trial court and then claim it on appeal. The majority uses Bailey to frame the People’s conduct as forfeiture: they did not object when the court confirmed they were not arguing the Erlinger-inapplicability theory.
  • People v Tabarez, 69 NY2d 663 (1986) (citing People v Villani, 59 NY2d 781 [1983]): Deployed for the proposition that the People are equally subject to preservation requirements; if the People “did not argue” an issue, it is not preserved. The majority analogizes: the People here similarly “did not argue” that Erlinger was inapplicable.
  • People v Hernandez, 43 NY3d 591 (2025): The majority cites Hernandez as signaling that preservation is especially enforced regarding the Erlinger-tolling issue, even if policy consequences are significant. The citation is used less for doctrinal content than as an institutional cue: the Court of Appeals has already declined to reach the same issue when not properly preserved.

B. Limits on “inherent authority” to create new jury procedures

  • People v Krieg, 139 AD3d 625 (1st Dept 2016), lv denied 28 NY3d 932 (2016): The majority relies on Krieg to constrain Judiciary Law § 2-b(3). That statute does not grant a general license to invent procedures whenever constitutional uncertainty arises; it permits new procedures only in “unusual circumstances” and “exceptional cases.” The court concludes those conditions do not exist merely because resentencing is complicated by Erlinger.

C. The contested constitutional backdrop (primarily developed in the dissent)

  • Erlinger v United States, 602 US 821 (2024): The dissent reads Erlinger narrowly as a jury requirement for ACCA’s “different occasions” inquiry—an “intensely factual” and “qualitative” characterization of past conduct—arguing it does not reach New York’s tolling calculation based on records. The majority, by contrast, does not decide Erlinger’s scope on the merits.
  • Almendarez-Torres v United States, 523 US 224 (1998), and Apprendi v New Jersey, 530 US 466 (2000): The dissent situates tolling within the “prior conviction” exception (judicial findings permitted as to what crime/elements were convicted). The dissent also cites Apprendi for the general rule requiring jury findings for facts increasing punishment, while emphasizing that tolling is ministerial and records-based.
  • Alleyne v United States, 570 US 99 (2013): Invoked by the dissent to emphasize that Erlinger was portrayed by its author as continuous with Apprendi/Alleyne, cases involving characterization of conduct (motive, brandishing), not arithmetic calculations of incarceration periods.
  • People v Porto, 16 NY3d 93 (2010), and People v Bell, 15 NY3d 935 (2010), cert denied sub nom. Bell v New York, 563 US 979 (2011): The dissent cites these as longstanding New York authority sustaining recidivist sentencing procedures against Apprendi-based challenges.
  • People v Baumann & Sons Buses, Inc., 6 NY3d 404 (2006): Mentioned in the dissent (via Cabrera) for the observation that preservation is strictly enforced when challenging constitutionality of legislation—though the dissent argues reviewability should not be cramped where the appellant seeks to uphold a statute.
  • People v Gomez, 236 AD3d 603 (1st Dept 2025), lv denied 43 NY3d 1045 (2025): Cited by the dissent (with Hernandez) on preservation principles specific to predicate adjudications.
  • People v Desmond Smith (NY Co Ind. No. 2755/2018): Referenced as a trial-level decision concluding Erlinger does not bar a court from making tolling findings. While nonbinding, it illustrates the unsettled landscape that made preservation strategically important.
  • People v Lark, 2024 WL 4523469 (Cal App 3d Dist. Oct. 18, 2024, No. C097702): Offered by the dissent as persuasive authority distinguishing Erlinger and allowing a judge to find record-based incarceration/prison-term facts.

3.2 Legal Reasoning

A. The majority’s rule: explicit non-advocacy below equals non-preservation

The core of the majority opinion is procedural, not constitutional. The People sought PVF resentencing but—despite acknowledging that “there is an argument” Erlinger did not apply—chose “in an excess of caution” to request a jury and, critically, expressly declined to litigate Erlinger’s inapplicability. At the hearing, the court stated its understanding that the People were not arguing the Erlinger issue and the People agreed.

Using People v Cabrera, the majority stresses that preservation is designed to force an adversarial “probing” of legal issues and to create a record fit for appellate review. Here, because the People disclaimed the argument, defendant had no reason (and little opportunity) to develop responsive legal argument on the record, and the court did not rule on the question. Accordingly, deciding the merits on appeal would require exactly what Cabrera cautioned against: a merits determination on an underdeveloped record.

B. No “public importance” bypass of preservation

The dissent framed the consequences as systemic (“disruption” of recidivist sentencing). The majority responds with a firm doctrinal boundary: there is no exception to preservation merely because a question implicates important public policy or constitutional consequences. It underscores this point by citing People v Hernandez as an instance where the Court of Appeals declined to reach the same general Erlinger-tolling issue for lack of preservation.

C. Separate note: courts cannot solve the jury problem by “inherent authority”

Even though the majority declines to reach whether Erlinger applies to tolling, it still addresses the People’s proposed workaround—empaneling a jury under Judiciary Law § 2-b(3). Relying on People v Krieg, it holds Judiciary Law § 2-b(3) is constrained to “unusual circumstances” and “exceptional cases,” and this resentencing did not qualify. Thus, absent legislative change or a controlling constitutional ruling permitting/mandating different procedures, trial courts are not free to invent a jury mechanism for predicate hearings.

3.3 Impact

  • Immediate doctrinal impact (clear): The decision reinforces that the People are held to the same strict preservation rules as defendants. Where the prosecution strategically elects not to press a legal theory below—especially by affirmatively disclaiming it—appellate courts will treat the issue as forfeited.
  • Operational impact in resentencings (likely): Prosecutors confronting Erlinger-adjacent arguments in predicate proceedings will need to (a) clearly articulate their position on Erlinger’s applicability, (b) request a ruling, and (c) make a record, rather than merely “noting” the issue. Defense counsel, conversely, may emphasize any prosecutorial equivocation to foreclose appellate rescue.
  • Systemic impact on New York’s recidivist scheme (unresolved): The merits question—whether Erlinger constitutionally requires a jury for tolling— remains unsettled in this opinion. As a result, the decision may prolong inter-court inconsistency until a properly preserved case squarely resolves the constitutional issue (or the Legislature amends the CPL).
  • Institutional impact on “inherent power” arguments (clear): Trial courts are cautioned against using Judiciary Law § 2-b(3) as a general gap-filler in sentencing procedure; litigants should not assume courts can improvise jury mechanisms where the CPL specifies judge-only hearings.

4. Complex Concepts Simplified

  • Preservation: To argue an issue on appeal, a party must have raised it in the trial court in a way that gave the judge a fair opportunity to rule and the opposing party a fair opportunity to respond. Here, the People’s problem was not just omission—it was an affirmative choice not to argue the point.
  • Lookback period: Many enhanced-sentencing statutes apply only if a prior conviction occurred within a fixed time window (often 10 years) before the new crime.
  • Tolling: The lookback “clock” stops during time the person was incarcerated for any reason. The court must often calculate excluded days to see whether an older conviction still counts as a predicate.
  • Persistent violent felony (PVF) offender vs. second violent felony offender: PVF generally requires two qualifying prior violent felonies within the lookback period (as extended by tolling), whereas second violent generally requires one. This case ended with second-violent sentencing because PVF status depended on a tolling calculation for the older conviction.
  • Judiciary Law § 2-b(3) “inherent power”: A limited authority to craft procedures in exceptional situations; it is not a broad power to rewrite statutory criminal procedure whenever a new constitutional question emerges.

5. Conclusion

People v Moore establishes a practical and cautionary precedent: when the prosecution wants appellate review of a constitutional theory affecting enhanced sentencing, it must do more than flag the issue—it must actually litigate it in the trial court and obtain (or at least seek) a ruling. The First Department’s refusal to reach the Erlinger-tolling merits rests on a disciplined application of preservation doctrine grounded in People v Cabrera and People v Bailey, and it rejects any “public importance” shortcut. At the same time, the court constrains procedural improvisation under Judiciary Law § 2-b(3), signaling that solutions to the Erlinger disruption—if disruption there ultimately is—must come through preserved litigation producing a merits ruling, higher-court clarification, or legislative reform.