New York Law Watch
Erlinger v United States and New York’s predicate felony statutes
Updated October 7, 2026 · 2 decisions
Both the First Department (Sabater) and the Second Department (Gardner) hold that Erlinger does not require a jury to decide tolling periods or the ten-year lookback for second felony and persistent felony offender adjudications; judges may make those determinations from official records.
Edited by Eric McAvey.
The decisions
People v Gardner
Appellate Division, Second Department · October 7, 2026
Law Watch record: 2026 NY Slip Op 05809
Holding The court held that the United States Supreme Court’s decision in Erlinger v United States does not require a jury to determine whether a defendant committed a predicate felony within the ten-year lookback period for second felony offender status. Instead, judges are constitutionally permitted to make these findings, including calculations regarding tolling periods, without a jury.
the decision in Erlinger does not alter the landscape of New York's predicate felony offender statutes
2026 NY Slip Op 05809, at the official text
People v Sabater
Appellate Division, First Department · September 24, 2026
Law Watch record: 2026 NY Slip Op 05459
Holding The court held that the Supreme Court’s decision in Erlinger v United States does not require a jury to determine tolling periods for prior convictions under New York’s persistent felony offender statutes. Such determinations are considered rote arithmetic calculations based on certified public records and fall within the Almendarez-Torres exception allowing judicial findings of prior convictions.
Erlinger does not apply to the tolling protocol contained in New York's predicate felony sentencing statutes
2026 NY Slip Op 05459, at the official text
Published October 7, 2026. Updated October 7, 2026.