People v. Jurgins

• Decision Date: 17 December 2015
• Citation: 26 N.Y.S.3d 495,46 N.E.3d 1048,26 N.Y.3d 607,2015 N.Y. Slip Op. 09311
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark JURGINS, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 607

46 N.E.3d 1048

26 N.Y.S.3d 495

2015 N.Y. Slip Op. 09311

The PEOPLE of the State of New York, Respondent

v.Mark JURGINS, Appellant.

Court of Appeals of New York.

Dec. 17, 2015.

Robert S. Dean, Center for Appellate Litigation, New York City (Lisa A. Packard of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Catherine M. Reno, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.

OPINION OF THE COURT

STEIN, J.

Defendant contends that his prior Washington, D.C. conviction for attempt to commit robbery is not equivalent to any New York felony and, therefore, did not provide a proper basis for his second felony offender adjudication. Because we agree that defendant was erroneously sentenced as a predicate felon based on that conviction, we reverse and remit for further proceedings.

I.

In satisfaction of a 12–count indictment, defendant pleaded guilty to the top count of robbery in the first degree. Pursuant to the plea offer, defendant's guilty plea was in exchange for a promised sentence of 11 years in prison, plus five years of postrelease supervision, assuming that defendant complied with certain conditions. The plea included treating defendant as a second felony offender. During the plea colloquy, the court clerk read a second felony information based on a 2000 Washington, D.C. conviction (the D.C. conviction) for attempt to commit robbery, and advised defendant that he could challenge it on two grounds: that he was not the person named, or that the conviction was unconstitutionally obtained. Defendant did not challenge the prior conviction on either of those grounds, and Supreme Court thereafter adjudicated him a second felony offender. At sentencing, the court found that defendant had violated a condition of the plea. In accordance with its earlier warning regarding such a violation, the court sentenced defendant to 25 years in prison, plus five years of postrelease supervision.

Defendant thereafter moved pursuant to CPL 440.20 to set aside his sentence on the grounds that he was denied the effective assistance of counsel at sentencing and was unlawfully sentenced as a second felony offender. In his motion, defendant asserted that he had agreed to the plea on the mistaken assumption that he was a second felony offender, as there was no discussion of how or whether the D.C. conviction was equivalent to a felony in New York. Supreme Court denied defendant's motion. (34 Misc.3d 1217[A], 2012 N.Y. Slip Op. 50127[U], 2012 WL 265914 [2012].)

Upon defendant's consolidated appeals from the judgment of conviction and the denial of his CPL 440.20 motion, the Appellate Division held that defendant's argument that his predicate felony was not equivalent to a New York felony was unpreserved and, alternatively, without merit (107 A.D.3d 595, 968 N.Y.S.2d 56 [1st Dept.2013] ). The Court also rejected his argument alleging ineffective assistance of counsel. However, the Court found the sentence to be excessive and, therefore, modified the judgment in the interest of justice by reducing the prison term from 25 years to 15 years. A Judge of this Court granted defendant leave to appeal (23 N.Y.3d 1021, 992 N.Y.S.2d 804, 16 N.E.3d 1284 [2014] ).

II.

Contrary to the People's contention, defendant did not waive his current argument as to the legality of his sentence. Waiver cannot be accomplished through silence (see People v. Dickinson, 18 N.Y.3d 835, 836, 938 N.Y.S.2d 836, 962 N.E.2d 257 [2011] ). Thus, defendant's statements that he was not challenging the predicate felony information on the two grounds delineated by the court clerk did not constitute a waiver of other, unmentioned grounds.¹ We, therefore, conclude that defendant did not affirmatively and knowingly relinquish his rights to challenge whether the foreign conviction qualified as a predicate felony and to be properly sentenced (see People v. Samms, 95 N.Y.2d 52, 55, 710 N.Y.S.2d 310, 731 N.E.2d 1118 [2000] ; compare People v. Ross, 7 N.Y.3d 905, 906, 828 N.Y.S.2d 253, 861 N.E.2d 68 [2006] ).

Apart from the distinct question of waiver—which the dissent conflates with the issue of preservation—we also disagree, at least partially, with the People's assertion that we cannot reach defendant's challenge to the legality of the second felony offender determination because that challenge is unpreserved. This challenge reaches us in two separate ways in this consolidated appeal—defendant's appeal is from both the judgment of conviction and from the denial of his subsequent motion

to set aside the sentence pursuant to CPL 440.20. As for the direct appeal, we agree that defendant did not preserve his current argument because he failed to argue at or before sentencing that the D.C. conviction could not qualify as a predicate felony (see People v. Smith, 73 N.Y.2d 961, 962–963, 540 N.Y.S.2d 987, 538 N.E.2d 339 [1989] ; People v. Parker, 121 A.D.3d 1190, 1190, 996 N.Y.S.2d 376 [3d Dept.2014] ).

However, defendant's challenge to his sentence is preserved for our review insofar as it was raised in his CPL 440.20 motion.² A CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as “unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20[1] ), and a determination of second felony offender status is an aspect of the sentence (see Penal Law § 70.06 [included in Penal Law article 70, addressing sentences of imprisonment] ). One of the legal defects that can be challenged in a CPL 440.20 motion is an alleged error in sentencing a defendant as a second or third felony offender, including the decision to consider certain prior convictions as predicates. Raising the predicate felony sentencing issue in a CPL 440.20 motion serves the goals and purposes of the preservation rule by permitting the parties to present their arguments on the issue in the trial court, creating a record for appellate review, and allowing the trial court the first opportunity to correct any error.³ Thus, we may address defendant's current challenge—that the sentence was illegal because the D.C. conviction did not render him a

second felony offender—on the appeal of the denial of his CPL 440.20 motion to set aside the sentence.

On the merits, the only element of the second felony offender statute at issue is whether the D.C. conviction is the equivalent of a New York felony, a matter which the People bore the burden of establishing (see People v. Yancy, 86 N.Y.2d 239, 247, 630 N.Y.S.2d 985, 654 N.E.2d 1233 [1995] ). As relevant here, a prior out-of-state conviction qualifies as a predicate felony conviction if it involved “an offense for which a sentence to a term of imprisonment in excess of one year ... was authorized and is authorized in this state” (Penal Law § 70.06[1][b][i] ). Because New York authorizes a prison sentence of more than one year only for felonies, we must determine whether defendant's foreign conviction is equivalent to a New York felony (see People v. Ramos, 19 N.Y.3d 417, 419, 948 N.Y.S.2d 239, 971 N.E.2d 369 [2012] ; People v. Muniz, 74 N.Y.2d 464, 467, 548 N.Y.S.2d 633, 547 N.E.2d 1160 [1989] ; People v. Gonzalez, 61 N.Y.2d 586, 592, 475 N.Y.S.2d 358, 463 N.E.2d 1210 [1984] ).

The general rule limits this inquiry “to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes” (Muniz, 74 N.Y.2d at 467–468, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ; see People v. Yusuf, 19 N.Y.3d 314, 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 [2012] ). In this regard, courts generally should consider only the statutes defining the relevant crimes, and may not consider the allegations contained in the accusatory instrument underlying the foreign conviction (see People v. Olah, 300 N.Y. 96, 98, 89 N.E.2d 329 [1949] ). However, under a narrow exception to the Olah rule, the underlying allegations must be considered when “the foreign statute under which the defendant was convicted renders criminal several different acts, some of which would constitute felonies and others of which would constitute only misdemeanors [or no crime] if committed in New York” (Muniz, 74 N.Y.2d at 468, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ; see Gonzalez, 61 N.Y.2d at 590, 475 N.Y.S.2d 358, 463 N.E.2d 1210 ; People ex rel. Goldman v. Denno, 9 N.Y.2d 138, 140, 211 N.Y.S.2d 403, 172 N.E.2d 663 [1961] ; People ex rel. Gold v. Jackson, 5 N.Y.2d 243, 245–246, 183 N.Y.S.2d 799, 157 N.E.2d 169 [1959] ). In those circumstances, the allegations will be considered in an effort to “isolate and identify” the crime of which the defendant was accused, by establishing “which of those discrete, mutually exclusive acts formed the basis of the charged crime” (Muniz, 74 N.Y.2d at 468–469, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ). The analysis requires us to

“distinguish between the specific criminal acts required by a penal statute and the various ways in which the statutory crime may be committed. The former concerns the crime's statutory elements and is relevant to the Penal Law § 70.06(1)(b)(i) inquiry; the latter concerns the underlying facts and ... is not relevant to that inquiry” (id. at 471, 548 N.Y.S.2d 633, 547 N.E.2d 1160 ).

The D.C. statute underlying defendant's prior conviction provides that, “[w]hoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery” (DC Code §§ 22–2801 ; see 22–2802 [attempt to commit robbery] ). In New York, robbery is defined as “forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he [or she] uses or threatens the immediate use of physical force upon another person” to prevent resistance to the taking or to compel the owner to deliver up the property (Penal Law §§ 160.00 ; see 110.00 [defining attempt to commit a crime] ).

The parties agree...