The People v. Mark Jurgins

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 178
The People &c.,
            Respondent,
        v.
Mark Jurgins,
            Appellant.




          Lisa A. Packard, for appellant.
          Catherine M. Reno, for respondent.




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

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                                - 2 -                        No. 178

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


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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.
          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 AD3d 595

 [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 NY3d 1021

 [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 NY3d 835, 836

 [2011]).    Thus, defendant's
statements that he was not challenging the predicate felony
information on the two grounds delineated by the court clerk did




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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 NY2d 52, 55

 [2000]; compare
People v Ross, 

7 NY3d 905, 906

 [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

     1
       The dissent asserts that defendant waived his claim based
on the language of CPL 400.21 (3) that allegations in the
predicate felony statement are deemed admitted if not
controverted. However, for that rule to apply, the court must
ask the defendant if he or she "wishes to controvert any
allegation made" in the predicate felony statement (CPL 400.21
[3]). Here, the court asked defendant whether he had out-of-
state convictions and stated that they could be considered as
felonies if committed in New York. However, this colloquy did
not occur in connection with the discussion of the predicate
felony statement, nor was it addressed to any particular
conviction, let alone the one that formed the basis of the
predicate felony finding. As the court did not adhere to the
statutory requirement, there was no waiver.

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sentencing that the D.C. conviction could not qualify as a
predicate felony (see People v Smith, 

73 NY2d 961, 962-963

[1989]; People v Parker, 

121 AD3d 1190, 1190

 [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 CPL 70.06 [included in CPL 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


     2
       Notably, "[a] motion [pursuant to CPL 440.20] to set aside
[a] sentence may be brought even though the illegality upon which
it is grounded presently is appealable or could with due
diligence have been appealed. The rationale for the distinction
[in this regard between motions pursuant to CPL 440.10 and
440.20] is that an illegal sentence should be subject to
challenge and rectification in the trial court without compelling
the defendant to pursue the more lengthy and cumbersome appellate
procedure" (Peter Preiser, Practice Commentaries, McKinney's Cons
Laws of NY, Book 11A, CPL 440.20 at 11).

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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 NY2d 239, 247

[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 NY3d 417, 419

 [2012];


     3
       The dissent complains that the purpose of preservation is
not achieved here because this case requires reliance on
materials outside the record, specifically the D.C. statute and
D.C. case law. We acknowledge that defendant did not include the
foreign statute in his CPL 440.20 motion papers, where he raised
his legal arguments concerning that statute. However, the
applicable law is unlike factual information that must be
included in a record. Courts routinely consult New York statutes
and case law to ensure lawful sentencing, but we do not require
the law, itself, to be placed in the record. The result should
be no different where it is necessary for a court to refer to the
law of another state; under such circumstances, we can take
judicial notice of the law of the foreign jurisdiction.

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People v Muniz, 

74 NY2d 464, 467

 [1989]; People v Gonzalez, 

61 NY2d 586, 592

 [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 NY2d at 467-468

;
see People v Yusef, 

19 NY3d 314, 321

 [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 NY 96, 98

 [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 NY2d at 468

; see Gonzalez, 

61 NY2d at 590

;
People ex rel. Goldman v Denno, 

9 NY2d 138, 140

 [1961]; People ex
rel. Gold v Jackson, 

5 NY2d 243, 245-246

 [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 NY2d at 468-469

).   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

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           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).

           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 ST § 22-2801; see DC ST § 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 Penal Law § 110.00 [defining attempt to commit a crime]).
           The parties agree that a taking "by sudden or stealthy
seizure or snatching" would not be considered a robbery or other
felony in New York, inasmuch as it is akin to pickpocketing, or
the crime of jostling, which is a misdemeanor in this state (see
Penal Law § 165.25).    However, the parties dispute whether the
D.C. statute describes different ways to commit the crime of
robbery or specific criminal acts that are required under the
statute.   We interpret the dependent clause between the first two
commas in the D.C. statute as modifying the first phrase, "by

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force or violence."   That is, a taking "by force or violence" can
be committed in several different ways, including "by sudden or
stealthy seizure or snatching."   Our reading of the statute is
consistent with that of the D.C. courts that have interpreted its
language (see United States v Mathis, 963 F2d 399, 408 [DC Cir
1992] [noting that this same statute can be violated by
pickpocketing]; Jackson v United States, 359 F2d 260, 262-263 [DC
Cir 1966]; see also Williams v United States, 113 A3d 554, 560
[DC Ct of Appeals 2015]).
           Thus, as relevant here, under the D.C. statute the
taking can occur (1) by force or violence, or (2) by putting in
fear.4   The force or violence element can be accomplished (1)
against resistance, or (2) by sudden or stealthy seizure, or (3)
by snatching (see Mathis, 963 F2d at 408).   Stated another way,
"the statute must be interpreted to include 'stealthy seizure' as
a form of 'force or violence'" (id.).   The statutory language
means that the crime can be committed in different ways, and the
phrase "sudden or stealthy seizure or snatching" does not
describe separate criminal acts required by the statute in
addition to the use of "force or violence" (see Jackson, 359 F2d
at 262-263).   Consequently, we do not look at the underlying
accusatory instrument to determine if the crime is equivalent to
a New York felony (see Yusef, 19 NY3d at 321).   Because the


     4
       The alternative element of "putting in fear" is not at
issue here.

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statute, itself, indicates that a person can be convicted of the
D.C. crime without committing an act that would qualify as a
felony in New York (i.e., by pickpocketing), defendant's D.C.
conviction for attempt to commit robbery was not a proper basis
for a predicate felony offender adjudication (see Ramos, 

19 NY3d at 420

).
           The illegal determination that defendant is a second
felony offender must, therefore, be vacated and the matter
remitted for further proceedings pursuant to CPL 440.20.    Upon
remittal, the People may allege a different prior felony
conviction -- if one exists -- as a basis for a predicate felony
adjudication (see People v Marrero, 

3 NY3d 762

, 763 [2004];
People v Hunt, 

162 AD2d 782, 783-784

 [3d Dept 1990], affd 

78 NY2d 932

 [1991], cert denied 

502 US 964

 [1991]).    Based on this
determination, we need not reach defendant's argument regarding
ineffective assistance of counsel.
           Accordingly, the order of the Appellate Division should
be reversed, and the matter remitted to Supreme Court for further
proceedings in accordance with this opinion.




                              - 10 -
The People of the State of New York v Mark Jurgins
No. 178




PIGOTT, J. (dissenting):
           The majority's decision today exempts defendant's post-
conviction motion from the same rules of preservation that bar
his direct appeal.    Because this distinction has no basis in law
or in logic and runs afoul of our longstanding preservation
jurisprudence, I dissent and would affirm the order of the
Appellate Division.
           As the majority correctly recognizes, a challenge to
the equivalency of a foreign felony conviction must be preserved
by timely objection in the sentencing court (see People v Smith,

73 NY2d 961, 961

 [1989]).   This is so because determining whether
a particular out-of-state conviction is the equivalent of a New
York felony may involve the production and examination of foreign
accusatory instruments and, conceivably, the resolution of
evidentiary disputes, all in the context of comparisons with the
law of other jurisdictions (see People v Samms, 

95 NY2d 52, 57

[2000]).
           Timely objection is also required by statute.   Section
400.21 of the Criminal Procedure Law governs the procedure to be
used when the People seek an enhanced sentence based on a
defendant's prior conviction.   It requires the People to provide


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                                - 2 -                          No. 178

the defendant with a predicate felony statement, setting forth
the date and place of the prior conviction and alleging that the
prior conviction is a valid "predicate" within the meaning of
Penal Law § 70.06 (CPL 400.21[2]).      The court must provide the
defendant an opportunity to object to or controvert the
allegations in the People's statement (CPL 400.21[3]).      Any
"[u]ncontroverted allegations shall be deemed to have been
admitted" (id.).
            The People complied with CPL 400.21 in this case by
providing defendant with a predicate felony statement containing
the date and place of his prior attempted robbery conviction.          It
clearly stated that his D.C. conviction for attempted robbery
constituted "a predicate felony, as defined in [Penal Law
§ 70.06(1)(b)]."    The court explained to defendant that he had
out-of-state convictions that would be the equivalent of felonies
if they had occurred in New York, and the court asked if
defendant understood that the convictions would be recognized as
felonies.    Defendant stated that he understood and that he still
wished to plead guilty.    Therefore, the allegations in the
statement, including the allegation that defendant's D.C.
conviction is a valid predicate felony, were deemed admitted (see
CPL 400.21[3], [8]).
            The fact that the court's colloquy did not specifically
address the D.C. conviction does not excuse defendant from his
statutory obligation to object (see majority op at 4 n 1).        We


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                               - 3 -                         No. 178

have previously held that the "statutory purposes for filing a
predicate statement (CPL 400.21) [are] satisfied" when a
defendant is provided "with reasonable notice and an opportunity
to be heard" (People v Bouyea, 

64 NY2d 1140, 1142

 [1985]).     Here,
although he was given a copy of the predicate felony statement
and admitted to the existence of the prior conviction, defendant
"raised no challenge to the court's consideration of the prior
conviction" and "made no objection to being sentenced as a
predicate felon" (id.).   Therefore, defendant's claim has been
statutorily waived (see People v Hummel, 

127 AD3d 1506, 1507

 [3d
Dept 2015] [rejecting defendant's challenge to his second felony
offender status based on the court's failure to comply with CPL
400.21(3) because defendant failed to object at sentencing and
because "there was substantial compliance with CPL 400.21"]).
            It is difficult to overstate how consistently the
courts of this state have relied on CPL 400.21 and our holding in
Smith to reject claims like the one defendant raises here.     The
Appellate Divisions uniformly find challenges to the equivalency
of a foreign felony conviction unpreserved or waived where
defendants fail to raise the issue at sentencing (see People v De
Aga, 

74 AD3d 552

, 552 [1st Dept 2010] [finding defendant's
challenge to the equivalency of his foreign felony conviction
unpreserved based on CPL 400.21 and Smith but reaching the issue
in the interest of justice]; People v Kelly, 

65 AD3d 886, 887

[1st Dept 2009], lv denied 

13 NY3d 860

 [2009] [finding


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                                - 4 -                           No. 178

defendant's claim unpreserved based on CPL 400.21 and Smith];
People v Delston, 

62 AD3d 1023

, 1023 [2d Dept 2009], lv denied 

13 NY3d 836

 [2009] [same]; People v Crippa, 

245 AD2d 811

, 812 [3d
Dept 1997] [same]; People v Gonzalez, 

61 AD3d 1428, 1429

 [4th
Dept 2009] [same]; see also Delston v New York, 

2010 WL 3004591

*17-18 [ED NY 2010] [finding defendant's claim that he was
improperly sentenced as a second felony offender procedurally
barred from habeas review because he failed to controvert the
equivalency of the foreign conviction at sentencing]).
            Notably, each of the defendants in the aforementioned
cases raised his claim in a CPL 440.20 motion to set aside the
sentence.   Unlike the majority, those courts draw no distinction
between a direct appeal and a post-conviction motion for purposes
of preservation.    And rightly so.   Nothing in the Criminal
Procedure Law or our decisions interpreting it allows us to
review unpreserved claims simply because they are raised in a CPL
440.20 motion.    Rather, the purpose of CPL 400.21(3) and our
contemporaneous-objection rule is to promote finality and prevent
further litigation over belated claims like the one defendant
raises here, which could have been resolved with a specific and
timely objection (see CPL 470.05[2]; People v Lopez, 

71 NY2d 662, 665

 [1988]).1    The majority's decision today burdens trial courts


     1
       To be sure, defendant had every incentive not to object to
the foreign felony conviction. The agreement he negotiated
allowed him to plead guilty to one count of robbery in the first
degree in satisfaction of the twelve charges for which he was

                                - 4 -
                                - 5 -                       No. 178

with an issue that can and should be litigated in the first
instance.    In the process, it has allowed this defendant to
achieve an end-run around our preservation rules that I suspect
future litigants will repeat.
            Although I would not reach the merits of defendant's
unpreserved claim, since the majority has, I will express my
disagreement on that front as well.
            The majority holds that the courts below erred in
looking beyond the elements of the D.C. and New York robbery
statutes because DC Code § 22-801 does not criminalize different
acts of robbery but merely different ways of committing a
robbery, one of which would not be a felony if committed in New
York (majority op at 9).    This is a hypertechnical reading of the
D.C. statute and of our decisions regarding the equivalency of
foreign felony convictions.
            As originally conceived, the Olah rule (see majority op
at 10) did not require courts to abstain altogether from
considering the factual allegations of a charge.    It merely
acknowledged that indictments often contain nonessential facts
that go beyond what the statute requires (see People v Olah, 

300 NY 96, 101

 [1949]).    And if we considered only the indictment in
determining whether a defendant was convicted of a crime in
another jurisdiction that would be a felony if committed in New
York, we would run the danger of extending or enlarging the crime


indicted.

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                                - 6 -                        No. 178

of which he was actually convicted (id.).
            The facts in Olah provide the perfect example.   The
defendant in that case was accused of having stolen a wallet, in
New Jersey, that contained $200.    Although it was a felony in New
York to steal more than $100, the defendant in Olah pleaded
guilty to a New Jersey offense that made it a crime to steal $20
or more.    By looking at the facts of the indictment rather than
the statutory elements, the lower court said that defendant's New
Jersey conviction was equivalent to a felony in New York because,
as the indictment alleged, he stole more than $100.    We reversed,
stating it did not matter whether the defendant in fact stole
more than $100, because he pleaded guilty only to stealing $20
(id. at 100).    Similarly, if the defendant had gone to trial in
New Jersey and been found "guilty," the verdict would have
reflected only that he stole money that amounted to at least $20
because the prosecution never would have had to prove beyond a
reasonable doubt that defendant stole more than $100, as New York
requires.
            Thus, the "intent and spirit of the Olah rule require
that the courts of New York abstain from considering surplusage
contained in the indictment or information" (People ex rel. Gold
v Jackson, 

5 NY2d 243, 245

 [1959] [emphasis added]; see also
People v Muniz, 

74 NY2d 464, 470

 [1989] [finding it improper to
look to the factual allegations in an accusatory instrument only
where the controversy does not turn upon them]).    It does not


                                - 6 -
                                 - 7 -                           No. 178

prohibit us from considering the accusatory instrument in order
to clarify or identify the particular crime of which defendant
was convicted (People v Gonzalez, 

61 NY2d 586, 591

 [1984]; Muniz,

74 NY2d at 468

).
            A practical reading of the D.C. statute at issue shows
that it criminalizes multiple acts, all of which would be
felonies in New York (acts of violence and force and by putting
in fear) except one, which would be a misdemeanor (taking
property by sudden or stealthy seizure or snatching) (see DC ST §
22-2801).   In order to ascertain the particular crime of which
defendant was convicted, it was appropriate for the courts below
to consider the facts alleged in the accusatory instrument.         When
they did, it became clear that defendant was convicted of
attempted robbery for using force or violence against resistance
and for putting the victim in fear, both of which would be
felonies if committed in New York.       If the opposite had been true
-- if defendant indeed had been a pickpocket -- those facts too
could be considered by the sentencing court and the predicate
felony statement rejected.   Thus, the importance of preservation.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order reversed and case remitted to Supreme Court, Bronx County,
for further proceedings in accordance with the opinion herein.
Opinion by Judge Stein. Chief Judge Lippman and Judges Rivera,
Abdus-Salaam and Fahey concur. Judge Pigott dissents and votes
to affirm in an opinion.

Decided December 17, 2015



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