Juries are not required for judges to determine if a defendant qualifies for an enhanced sentence in New York, despite the U.S. Supreme Court saying otherwise, according to a landmark ruling from the Appellate Division, Second Department.

The Appellate Division, Second Department ruled on Wednesday that defendants are not entitled to have a jury determine if they qualify for an enhanced sentence based on the timeline of prior convictions. The decision has widespread implications for repeat felons, who can now receive a sentence beyond the maximum otherwise allowed, based on a judge’s determination alone. The ruling also likely will set up a larger legal debate in the state’s highest court.

The appeals court made the decision in the case of a Queens man, Malik Gardner, who was arrested for illegal drug and weapon possession charges in 2018.

Gardner pleaded guilty to the charges and was sentenced in 2019, but he also had a prior criminal weapon possession conviction from 2006. During sentencing, Queens Supreme Court Justice Gia Morris determined he must be sentenced as a second felony offender.

In 2023, Gardner moved to have his sentence vacated and argued, among other things, that only a jury could determine if his prior conviction was within the 10-year timeline used to determine whether he qualified as a first- or second-time felony offender. Morris granted Gardner’s motion in 2024 and resentenced him as a first-time violent felony offender. The Queens District Attorney’s Office appealed and brought the case before the appellate court.

An enhanced sentence is the practice of imposing a sentence beyond the standard maximum for a felony defendant who has two or more qualifying prior felony convictions within the past 10 years.

In New York state, judges have the discretion to determine if a felony defendant qualifies for an enhanced sentence.

But that practice puts the state at odds with the U.S. Supreme Court which, under Erlinger v United States, found that only a jury could determine if a defendant’s most recent conviction fell within 10 years of their previous conviction.

In Gardner’s case, the Appellate Division, Second Department had the unique chance to weigh in on whether a jury is needed solely to determine if a defendant’s prior convictions occurred within 10 years of the current offense.

“We hold that it does not,” the appellate court’s decision read.

“The decision in Erlinger does not alter the landscape of New York’s predicate felony offender statutes, the constitutionality of which is well-settled,” the decision continued. “The defendant in this case was not constitutionally entitled to have a jury determine the length of the previous period of incarceration for the purposes of tolling the 10-year lookback period.”

The court ruled that the issue Erlinger specifically addressed – a sentencing provision of the Armed Career Criminal Act regarding enhanced sentencing – is fundamentally different from the provisions of New York’s repeat felony offender statutes and does not affect their constitutionality.

The appellate court also ruled that courts are already required to determine the dates on which a defendant was admitted to and discharged from a correctional facility while serving a prior sentence, and that that determination is akin to a “fact of prior conviction.” Under Apprendi v. New Jersey, the appellate decision states, judges may properly determine facts of prior conviction without a jury determination.

The judges cited Erlinger itself, and quoted the decision in their ruling – “It is wildly inefficient for our system to try to fit the square peg of factfinding related to past criminality for sentencing purposes into the round hole of the existing processes that govern jury determinations.”

Following their decision, the appellate court judges reversed the resentencing of Gardner as a first-time felony offender, and remitted the case back to Morris’ court.