- Court
- New York Supreme Court, Appellate Division, First Department
- Case Name
- People v. Pleasant
- Slip Op. No.
- 2026 NY Slip Op 03275
- Decision Date
- May 26, 2026
- Docket No.
- Ind. No. 425/21, Appeal No. 6725-6726, Case No. 2023-06132, 2025-03445
Background
Devon Pleasant was convicted upon a guilty plea in Bronx County Supreme Court of assault in the second degree and sentenced as a second violent felony offender to a term of five years. The second violent felony offender classification required that Pleasant have a prior violent felony conviction within the 10-year “lookback” period defined by Penal Law Section 70.04(1)(b)(iv) and (v). Under this provision, periods of incarceration toll the lookback period, meaning time spent incarcerated does not count toward the 10-year window.
At sentencing, the court asked Pleasant whether he denied “any allegation in this statement”—the predicate felony statement that included allegations regarding both prior convictions and the periods of tolling. Pleasant declined to deny any allegation. He subsequently moved to set aside the sentence under CPL 440.20 and appealed both the judgment of conviction and the denial of that motion.
Pleasant argued that, pursuant to the United States Supreme Court’s decision in Erlinger v. United States (2024), which expanded on the Apprendi v. New Jersey principle, he was entitled to have a jury determine whether prior periods of incarceration tolled the lookback period for purposes of the second violent felony offender classification.
Holding
The First Department unanimously affirmed both the judgment and the order denying the CPL 440.20 motion. The court held that Pleasant waived his Erlinger argument by declining to deny “any allegation” in the predicate felony statement at sentencing.
The court cited Erlinger’s own language, which noted that facts increasing the prescribed range of penalties must be resolved by a jury beyond a reasonable doubt or “freely admitted in a guilty plea.” Because the court’s inquiry encompassed all allegations in the statement—including those regarding tolling periods—and Pleasant declined to deny any of them, he “freely admitted” the correctness of the tolling determination and thereby waived any challenge.
The court further held that any error would be harmless because Pleasant did not contend, even on appeal, that the court erred in its actual tolling calculation. Additionally, citing its recent decision in People v. Young (2026), the court noted that Erlinger does not apply to the tolling determination because it involves a “rote arithmetic calculation” on certified public records—a “completely objective” and “narrow, ministerial task.”
Key Takeaways
- A defendant who declines to deny “any allegation” in a predicate felony statement at sentencing waives Erlinger/Apprendi jury-trial challenges to the tolling calculation for the lookback period.
- The First Department has held that Erlinger does not extend to the tolling determination for the violent felony lookback period, characterizing it as a rote arithmetic calculation on certified public records.
- Harmless error analysis applies: even if a jury should have determined the tolling issue, the error is harmless where the defendant does not dispute the accuracy of the calculation.
- The scope of waiver at sentencing depends on the breadth of the court’s inquiry; a broad question about “any allegation” encompasses all elements of the predicate felony statement.
Why It Matters
This decision is significant for criminal defense practitioners challenging second violent felony offender adjudications in the wake of Erlinger. The First Department’s holding that Erlinger does not apply to lookback period tolling calculations narrows the potential impact of the Supreme Court’s decision in New York sentencing proceedings. The ruling also establishes that a defendant’s failure to contest allegations in a predicate felony statement constitutes a broad waiver that encompasses not just prior convictions but also tolling calculations. Defense attorneys should ensure that clients understand the scope of the admissions made when declining to deny allegations in predicate felony statements at sentencing.