The People, Respondent,v.Mark Jurgins, Appellant.BriefN.Y.October 22, 2015APL-2014-00183 To be argued by ~tatt of Jlttu !Jodt LISA A. PACKARD (15 Minutes Reguested) THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - MARK JURGINS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT LISA A. PACKARD Of Counsel September 26, 2014 ROBERT S. DEAN Attorney for Defendant-Appellant CENTER FOR APPELLATE LITIGATION 120 \Vall Street New York, NY 10005 Tel: (212) 577-2523 TABLE OF CONTENTS TABLE OF AUTHORJTIES ........................................... iii PRELIMINARY STATEl\!IENT ......................................... 1 JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STA TErv1E:'-JT 0 F FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1\RGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 POIN'r ........................................................ 8 :~vIARI< JURGINS'S SECO:>JD FELONY OFFEJ\'DER SENTENCE IS UNLA \vFUL BECAUSE THE ALLEGED OUT-OF-STATE PREDICATE IS NOT A NEW YORl<._ FELONY EQUIVALENT UNDER THE PENAL LA WI . . . . . . . . . . . . . . 8 ivfark Jurgins Was Sentenced Unlawfully as a Second Felony Offender Because His Prior D.C. Conviction Is Not a Valid Predicate Felonv Offense ................................................... 8 B. ivfarkJurgins Properly Challenged The Legality of His Sentence on Direct Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 1. l\!Ir. Jurgins's Challenge to the Legality of His Sentence Is Not Subject to Preservation Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2. Mr. Jurgins's C.P.L § 440.20 Motion Satisfied Any Preservation Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 C. Counsel Rendered Ineffective Assistance of Counsel in Failing to Challenge the Predicate Offense .............................. 23 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 PRINTING SPECIFICATIONS STATEMENT .......................... 25 11 TABLE OF AUTHORITIES CASES Jackson v. United States, 359 F.2d 260 (D.C. 1965) .......................................... 10, 12, 13 Johnson v. United States, 756 A.2d 458 (D.C. 2000) .................................................... 11 Ivfatter of North v. Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745 (2007) ................................................................................................... 8, 9, 10 People v. Adams, 164 A.D.2d 546 (2d Dep't 1991) ...................................................... 22 People v. Baldi, 54 N.Y.2d 137 (1981) ............................................................................ 23 People v. Benevento, 91 N.Y.2d 708 (1998) .................................................................. 23 People v. Bennett, 60 A.D.3d 478 (1st Dep't 2009) ...................................................... 21 People v. Booker, 301 A.D.2d 477 (1st Dep't 2003) ..................................................... 21 People v. Bradner, 107 N.Y. 1 (1887) .............................................................................. 15 People v. Cardona, 9 A.D.3d 337 (1st Dep't 2004) ....................................................... 21 People v. Clermont, 22 N.Y.3d 931 (2013) ..................................................................... 23 People v. Clifton, 28 A.D.2d 708 (2d Dep't 1967) .......................................................... 4 People v. Craig, 29 5 N .Y. 116 (1946) .............................................................................. 15 People v. David, 65 N.Y,2d 809 (1985) .......................................................................... 17 People v. Diaz, 115 A.D.3d 483 (1st Dep't 2014) ................................................... 21, 22 People v. Fuller, 57 N.Y.2d 152 (1982) .......................................................... 2, 14, 16, 22 Peoplev. Gonzalez, 61N.Y.2d586 (1984) .......................................................... 9, 10, 13 111 People v. Jurgins, 107 A.D.3d 595 (1st Dep't 2013) ....................................... 6, 7, 12, 15 People v. Kelly, 65 A.D.3d 886 (1st Dep't 2009) .................................................... passim People v. Laureano, 87 N.Y.2d 640 (1996) ..................................................................... 16 People v. Logan, 2 A.D.3d 1392 (4th Dep't 2003) ........................................................ 22 People v. Lopez, 28 N.Y.2d 148 (1971) .......................................................................... 17 People v. l\1orse, 62 N.Y.2d 205 (1984) .......................................................................... 17 People v. Muniz, 74 N.Y.2d 464 (1989) ................................................................... passim People v. Olah, 300 N.Y. 96 (1949) ............................................................................. 9, 13 People v. Perron, 273 A.D.2d 549 (3d Dep't 2000) ...................................................... 21 People v. Ramos, 19 N.Y.3d 417 (2012) .......................................................... 8, 9, 15, 18 People v. Samms, 95 N.Y.2d 52 (2000) .................................................................... passim People v. Santiago, 22 N.Y.3d 900 (2013) .......................................................... 14, 15, 18 People v. Scarver, 302 A.D.2d 243 (1st Dep't 2003) ..................................................... 21 People v. Smith, 73 N .Y.2d 961 (1989) .................................................................... passim People v. Stinson, 151 A.D.2d 842 (3d Dep't 1989) ..................................................... 22 People v. Thomas, 36 )J.Y.2d 514 (1975) ....................................................................... 11 People v. West, 58 A.D.3d 483 (1st Dep't 2009) ........................................................... 21 People v. Yusuf, 19 N.Y.3d 314 (2012) ....................................................................... 9, 11 Strickland v. Washington, 466 U.S. 668 (1984) .......................................................... 7, 23 Turner v. United States, 57 App.D.C. 39 (D.C. 1926) .................................................. 11 lV United States v. l\1athis, 963 F.2d 399 (D.C. Cir. 1992) .................................... 10, 11, 12 STATUTES C.P.L. § 440.10 .............................................................................................................. 19, 20 C.P.L. § 440.20 .................................................................................. 1, 3, 14, 19, 20, 21, 22 C.P.J~. § 450.15(2) ................................................................................................................. 2 C.P.L. § 450.90(1) ................................................................................................................. 2 C.PJ_,. § 460.20(2)(a)(i) ......................................................................................................... 2 C.P.L. § 470.05(2) ................................................................................................................. 2 C.P.L. § 470.35(1) ................................................................................................................. 2 D.C. Stat. § 22-2801 ................................................................................................... 3, 4, 10 D.C. Stat. § 22-2803 ....................................................................................................... 3, 10 D.C. Stat. § 22-2901 ....................................................................................................... 3, 11 N.Y. Const., 1\rt. I, § 6 ....................................................................................................... 23 Penal I,aw § 60.07 (1) ............................................................................................................ 3 Penal Law§ 70.04 ............................................................................................................... 14 }>enal I~a\v § 70.06 ....................................................................................................... 3, 8, 14 Penal I,aw § 110.05(7) ........................................................................................................ 11 Penal Law§ 155.05 ............................................................................................................. 11 l~enalI,avv § 155.30 ............................................................................................................. 11 v IJenal Law § 160.00 ............................................................................................................. 11 IJenal I~a\V § 165.25 ............................................................................................................. 11 ·u.s. Const., 1\mend. VI ..................................................................................................... 23 U.S. Const., Amend. XIV .................................................................................................. 23 V1 STATE OF NEW YORK COURTS OF APPEALS -------------------------------------------------------------------x THE PEOPLE OF THE ST_A_ TE OF NEW YORI<, Respondent, -against- l'v1ARJC JURGINS, Defendant-Appellant. -------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of the Honorable Jenny S. Rivera, Associate Judge of the Court of Appeals, granted June 24, 2014 (A. 2),1 this appeal is taken from an order of the Appellate Division, First Department, entered June 25, 2013 (A. 3-5), which (1) modified appellant J\fark Jurgins's underlying judgment, rendered July 2, 2010, convicting him upon his guilty plea of robbery in the first degree and sentencing him to the maximum determinate prison term of 25 years to life; and (2) affirmed the January 27, 2012, order of the Supreme Court, Bronx, County, denying Mark Jurgins's motion to set aside his sentence as unlawful under C.P.L. § 440.20(1). Ivir. Jurgins is currently incarcerated pursuant to the judgment. 1 Parenthetical references preceded by "A." are to Defendant-Appellant's Appendix. 1 JURISDICTIONAL STATEMENT Jurisdiction to entertain this appeal is conferred under C.P.L. § 460.20(2)(a)(i), which authorizes an appeal to this Court upon a certificate granting leave issued by a judge of the Court of Appeals. Such certificate was issued by Associate Judge Rivera and it is included in the Appendix (A. 2). J'vfr. Jurgins's challenge to the legality of his sentence is reviewable as a matter oflaw, People v. Samms, 95 N.Y.2d 52 (2000), and to the extent the prosecution claims otherwise, that is itself a question of law for this Court's review. People v. Fuller, 57 N.Y.2d 152, 156 (1982). It is also reviewable byway of the order denying his C.P.L. § 440.20 motion, which was appealed by permission to the Appellate Division pursuant to C.P.L. § 450.15(2), and which the Appellate Division consolidated with the underlying judgment. C.P.L. §§ 450.90(1), 470.05(2), 470.35(1). QUESTION PRESENTED Whether lVIark Jurgins's sentence is unlawful where the alleged foreign predicate offense is not a New York felony equivalent under the Penal Law. STATEMENT OF FACTS In _.April of 2010, Mr. Jurgins pleaded guilty to robbery in the first degree, the top count of the indictment, in exchange for the prosecution's promised sentence of 11 years' imprisonment and five years' post~release supervision. The charges arose from allegations that in lVIay 2008, IVIr. Jurgins, using a knife, robbed and injured a livery cab driver. The plea agreement reflected the parties' intention to secure the lowest possible 2 term for l\1r. Jurgins: eight years' imprisonment was the minimum allowable sentence for a second felony offender under Penal Law§ 70.06(6), and Mr. Jurgins would be required to serve three years' additional time under mandatory enhanced sentencing provisions for offenses involving vehicles "for hire." See Penal Law§ 60.07(1) (outlining sentence enhancement for offenses involving operators of for-hire vehicles). (A. 7). The prosecution filed a predicate felony statement alleging that Mr. Jurgins had a previous conviction for "attempt to commit robbery" under "D.C. Statute 22-2801 (22- 2803)."2 84). At the plea, Mr. Jurgins admitted that he was the person named in the predicate felony statement and did not dispute the constitutionality of the prior conviction. 20). There was no discussion of how the conviction constituted a felony in :>Jew York. At sentencing, the court found that rvfr. Jurgins had breached the plea agreement by telling the Department of Probation during his pre-sentence interview that he was innocent and wanted to withdraw his plea, and on that basis imposed the maximum prison term of 25 years. 24-34). l\1r. Jurgins filed a Notice of Appeal. Before perfecting his direct appeal, ]\fr. J urgins filed a motion to set aside his sentence under C.P.L. § 440.20(1), alleging that he was unlawfully sentenced as a second felony offender. (A. 35). He argued that the D.C. conviction did not qualify as a valid predicate because the foreign statute encompassed conduct that would be punishable 2 When Mr. Jurgins was charged in D.C., this offense was listed under D.C. Stat. § 22-2901. The crime is defined the same under both versions. 3 only as a misdemeanor in New York. (A. 43-47). 3 Specifically, under the D.C. statute for robbery, a "sudden or stealthy seizure or snatching" is considered a taking "by force or violence." (A. 45-47). 4 Nir. Jurgins also argued that counsel was ineffective in failing to challenge the predicate, attaching an affirmation from prior counsel swearing that she had examined the D.C. offense and concluded that there were no grounds to challenge it. See Affirmation (A. 47-50, 113). Trial counsel further swore that, had she "known that there were grounds to challenge the predicate felony offense, I would have advanced those grounds." (A. 113). In response papers, the prosecution argued that l'vir. J urgins' s failure to protest the error at the time of the predicate adjudication barred his claim, citing the First Department's decision in People v. Kelly, 65 A.D.3d 886 (1st Dep't 2009). (A. 120-21). On the merits, the prosecution argued that, to the extent the statute was broader than New York counterpart statutes and encompassed non-felony conduct, the statute was divisible into discrete parts, entitling the court to invoke the limited exception which 1 In addition to this Court's established precedent on the issue, .:Vfr. Jurgins relied on People v. Clifton, 28 A.D.2d 708 (2d Dep't 1967), in which the Second Department invalidated a predicate adjudication based on the same D.C. statute. 4 The statute reads in relevant part: Whoever 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. D.C. Stat. § 22-2801. 4 allows it to look beyond the statute to the accusatory instrument. (A. 121-25). The prosecution attached the indictment, which reads: On or about July 29, 2000, within the District of Columbia, J'v1arkJurgins, by means of overt acts, that is, assaulting, did attempt by force and violence, against resistance and by putting in fear, to steal and take a purse and its contents, from the person and from the immediate actual possession of [complainant]. (A. 130). The prosecution claimed that the omission of the "sudden or stealthy seizure" language from the indictment demonstrated that Mr. Jurgins was necessarily convicted of an act constituting a felony in New York. (A. 124). Because the predicate could not be challenged, moreover, counsel below could not be found ineffective for failing to challenge it. (A. 127). Mr. Jurgins's reply papers attacked the prosecution's reliance on the accusatory instrument. First, because the foreign statute is not divisible into discrete acts that could only be punished as felonies in ew York, the court could not look beyond the statute at the accusatory instrument to resolve the dispute. (A. 145-48). In any event, the accusatory instrument did not narrow the charge against Mr. Jurgins to one that was necessarily a felony in New York because the indictment still alleged an attempted act of a taking "by force or violence," which, under settled D.C. law, encompasses misdemeanor-level conduct in New York. J'vforeover, any accusations beyond the "by 5 force or violence" act element alleged in the indictment were mere surplusage, and reliance on them would be improper. (A. 148). By written decision dated January 27, 2012, Supreme Court denied Mr. Jurgins's motion, adopting the prosecution's argument that his claim was procedurally barred under the First Department's holding in People v. Kelly, and that the failure to challenge the predicate at the time of the plea "waived" the claim. (A. 167, 174-77). The court likewise agreed that the foreign statute was divisible into discrete acts, some of which would only constitute felonies in New York, and that the accusatory instrument established that l\1r. J urgins could only have been convicted of a foreign felony equivalent. 177-81). l'vlr. Jurgins argued the same claims on his consolidated direct appeal to the Appellate Division. 5 In modifying, the court rejected J\1r. Jurgins's claim as unpreserved and waived, citing this Court's decision in People v. Smith, 73 N.Y.2d 961 (1989), and its decision in Kelly, 65 A.D.3d at 886. People v. Jurgins, 107 A.D.3d 595, 595 (1st Dep't 2013). (A. 3-5). It also rejected Mr. Jurgins's claim on the merits, holding that the accusatory instrument was properly consulted and established the necessary equivalency: "The foreign statute criminalizes several acts, each of which constitutes a category of ---~-------- 5 The ~\ppdlate Division granted ~fr. Jurgins leave to appeal the denial of his C.P.L. § 440.20 motion (l1.costa, J.), and consolidated the appeal vvith the direct appeal of his underlying judgment of conviction. In addition to raising the claims outlined in the instant appeal, Mr. Jurgins asked for a sentence reduction in the interest of justice. The Appellate Division reduced Mr. Jurgins's sentence to 15 years' imprisonment. 6 theft even if not separately enumerated, as opposed to constituting mere ways of committing the crime." Id. The court further held that counsel could not be found ineffective, and that in any event "counsel's determination that there was no valid ground upon which to challenge the second felony offender adjudication was within the 'wide range of professionally competent assistance."' Id. (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)). 7 ARGUMENT POINT l\LARK JURGINS'S SECOND FELONY OFFENDER SENTENCE IS UNLAWFUL BECAUSE THE ALLEGED OUT-OF-STATE PREDICATE IS NOT A NEW YORK FELONY EQUIVAiENT U:\IDER THE PENAL LAW. A. Mark Jurgins Was Sentenced Unlawfully as a Second Felony Offender Because His Prior D.C. Conviction Is Not a Valid Predicate Felony Offense. At l'viark Jurgins's plea proceeding, the prosecution filed a predicate felony statement alleging that Mr. Jurgins had a previous conviction that subjected him to enhanced sentencing as a second felony offender under Penal Law § 70.06. 20, 84). Under Penal Law§ 70.06(1)(b), an out-of-state conviction qualifies as a predicate offense only if it is for an offense for which a sentence in excess of one year is authorized in the foreign jurisdiction and "is authorized in this state." The words "authorized in this state" require that the out-of-state offense of which the defendant was convicted "include all the essential elements of a New York felony." People v. Ramos, 19 N.Y.3d 417, 419 (2012) (citing People v. l\!luniz, 74 N.Y.2d 464, 467-68 (1989)). This Court has referred to the "essential elements" comparison as a test of "strict equivalency" because "technical distinctions between the New York and foreign penal statutes can preclude use of a prior felony as a predicate for enhanced sentencing." Ramos, 19 N.Y.3d at 419 8 (citing rvfatter of North v. Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745, 751 (2007)). The inquiry is "limited 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 467-68 (1989); see People v. Gonzalez, 61 N.Y.2d 586, 589 (1984) ("[T]he court must examine the elements of the foreign statute and compare them to an analogous Penal Law felony.") (citing People v. Olah, 300 N.Y. 96, 98 (1949) ("A crime is to be measured and limited by the statute which defines it.")). If the "statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a felony in New York, the foreign statute may not serve as a predicate." People v. Yusuf, 19 N.Y.3d 314, 321 (2012). Under this test it is "immaterial that the crime actually committed in the foreign jurisdiction may be the equivalent of a felony in New York." Ramos, 19 N.Y.3d at 419 (emphasis added). If the foreign statute would have permitted a conviction for conduct that did not amount to a New York felony, the foreign offense may not be used to enhance a defendant's sentence. Ramos,19 .Y.3d at 419; see Muniz, 74 N.Y.2d at 468-70 (rejecting predicate premised on conviction under New Jersey burglary statute that encompassed conduct that constituted only a misdemeanor in )Jew York). A limited exception to this analysis allows the sentencing court to look beyond the statute and scrutinize the accusatory insttument where the foreign statute "renders criminal several different acts, some of 9 which would constitute felonies and others of which would constitute only misdemeanors if committed in New York." 1v1uniz, 7 4 .Y.2d at 468 (citing Gonzalez, 61 N.Y.2d at 590-91). In this case, the prosecution filed a predicate statement alleging that Mr. Jurgins had been convicted of attempted robbery under D.C. Stat.§ 22-2801 (22-2803). Pursuant to that statute: \'Vhoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take anything from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than two years nor more than 15 years. In D.C., robbery is a taking "by force or violence," a phrase encompassing both takings "against resistance" and those "by stealthy snatching." Jackson v. United States, 359 F.2d 260, 262 (D.C. 1965) (explaining that the D.C. statute expanded the common law definition of robbery so that the "critical element of the crime, a taking by force or violence," includes robbery by stealthy snatching); see also United States v. Nfathis, 963 F.2d 399, 408 (D.C. Cir. 1992) ("The dependent clause-'whether against resistance or by sudden or stealthy seizure or snatching'-clearly modifies 'force or violence."'). 'To prove the element of force under a stealthy snatching theory, "the government need only demonstrate the actual physical taking of the property from the person of another, even though without his knowledge and consent, and though the property be unattached to 10 his person." Johnson v. United States, 756 A.2d 458 (D.C. 2000) (quoting Turner v. United States, 57 App.D.C. 39, 40 (D.C. 1926)). This definition includes pickpocketing. Id.; see also Mathis, 963 F.2d at 408 ("[A] D.C. jury may convict a defendant of a section 22-2901 robbery offense for an act of pickpocketing."). Thus, although deemed a taking "by force or violence," a robbery in D.C. can be accomplished with neither, and the taking need not even be directly from the person. By contrast, robbery is defined in New York as "forcible stealing," and requires the use or threatened immediate use of "physical force." Penal Law§ 160.00. A taking without force at most constitutes the crime of grand larceny in the fourth degree. See Penal Law § 155.30(5) (defining the stealing the property of another as larceny in the fourth degree); Penal Law §§ 155.05(1), (2) (providing that larceny includes conduct constituting common law trespassory takings). Although fourth-degree grand larceny is a class E felony (Penal Law§ 155.30), the attemptto commit it is a class A misdemeanor. See Penal Law § 110.05(7). New York criminalizes pickpocketing under Penal Law§ 165.25 CJ ostling"), a class A misdemeanor. See People v. Thomas, 36 N.Y.2d 514, 517 (197 5) ("[T]he crime of jostling is essentially aimed at the stealthy pickpocket, who surreptitiously attempts to secure the personal property of his victim."). Because one can violate D. C.' s robbery statute through conduct that would only constitute a misdemeanor in New York, the alleged predicate offense was invalid and ]\fr. Jurgins's sentence is unlawful. Yusuf, 19 N.Y.3d at 321. 11 In rejecting the merits of this argument, the Appellate Div"ision erroneously concluded that it could look beyond the statute to the accusatory instrument, believing that the "foreign statute criminalizes several acts, each of which constitutes a category of theft even if not separately enumerated, as opposed to constituting mere ways of committing the crime." Jurgins, 107 A.D.3d at 595-96. The court provided no further explanation for concluding that the necessary equivalency was established, but presumably it adopted the 440 court's conclusion that the omission of the stealthy snatching language from the indictment meant that :l\fr. J urgins could only have been convicted of conduct that would necessarily constitute a felony in New York. (A. 177- 81 ). The Appellate Division's findings simply miss the point of the essential elements analysis. Resort to the accusatory instrument was both improper and unavailing. The D.C. statute's operative act element is a taking "by force or violence," which subsumes within it both robberies committed "against resistance" and those by "stealthy seizure." These terms do not describe separate "act" elements of the statute in and of themselves, but rather ways in which the act element-"by force or violence"-can be committed. jackson, 359 F.2d at 263 (holding that robbery conviction properly obtained for stealthy pickpocketing, even though the indictment only alleged "against resistance," because it was merely "a specification of a way of committing the offense"); see also IVlathis, 963 F.2d at 408 (finding that D.C. robbery offense not valid violent predicate for enhanced 12 sentencing purposes because the statute is "interpreted to include 'stealthy seizure' as a form of 'force or violence"'). Because the statute is not divisible into subsections that encompass only felony-level conduct in New York, looking beyond the statute to the accusatory instrument was improper. Gonzalez, 61 N.Y.2d at591-92 (finding accusatory instrument non-dispositive because the allegations contained within it could support a finding of finding of crimes that had no ew York felony equivalent). The same reasoning demonstrates that the indictment here could not resolve the dispute in any event. So long as the indictment alleges the "force or violence" element, a conviction for robbery can be obtained in D.C. on a stealthy snatching theory even when the indictment omits that language. Jackson, 359 F.2d 260. In Jackson, for example, the indictment alleged a "taking by force and violence and against resistance and by putting in fear .... " Id. at 262. The court found it irrelevant that the government did not proceed on a traditional resistance theory, however, because the "critical element" of "force or violence" was alleged, and the remaining language was "surplus age" for which "proof was not required." Id. at 263. Likewise here, the omission of the "stealthy seizure" language did not mean that J'vfr. Jurgins was necessarily convicted of conduct that would constitute a felony, since the "critical element" of "force or violence" was alleged, and any additional language was mere "surplusage" which could not be relied upon. JVluniz, 74 N.Y.2d at 470 (citing Olah, 300 N.Y. at 100 f1949':\ \ j J 13 In sum, because D.C. robbery statute is broader than any New York felony counterpart, it fails New York's "essential elements" test and J\fr. Jurgins's sentence is unlawful. B. Markjurgins Properly Challenged The Legality of His Sentence on Direct Appeal. Because the D.C. statute, on its face, demonstrates that the foreign conviction was not a valid predicate offense, Mark Jurgins properly challenged his sentence on direct appeal without having protested the error below. Alternatively, Ivlark Jurgins's C.P.L. § 440.20 motion preserved his claim for appellate review. 1. J\fr. Jurgins's Challenge to the Legality of His Sentence Is ot Subject to Preservation Rules. sentence imposed in violation of the statutory limitations on predicate sentencing enhancements is unlawful. See People v. Samms, 95 N.Y.2d 52 (2000) ("Defendant's sentence, imposed in violation of this [Penal Law § 70.04] statutory mandate, was unauthorized."). Where the violation is discernable from the trial record, no preservation is necessary to raise it on appeal. People v. Santiago, 22 N.Y.3d 900 (2013) (concluding preservation not necessary to review claim that use of an alleged foreign predicate violated Penal Law§ 70.06). The exemption of illegal sentences from the preservation requirement is no new rule. "[I]t has long been the law that the 'essential nature' of the right to be sentenced as provided by law, though not formally raised at the trial level, preserves a departure therefrom for review in this court." People v. Fuller, 57 14 N.Y.2d 152, 156 (1982) (citing People v. Craig, 295 .Y. 116, 120 (1946); People v. Bradner, 107 N.Y. 1, 4-5 (1887); Cohen and Karger, Powers of the New Court of Appeals [rev. ed.],§ 199, 750-51). l\fr. Jurgins's challenge to the alleged predicate fits within the illegal-sentence exception. The inquiry here is "limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes," and on its face the D.C. statute fails New York's strict equivalency test. Ramos, 19 N.Y.3d at 419. Resorting to the accusatory instrument would be improper in this case, and therefore the court's illegality in sentencing ]\fr. J urgins as a predicate felon "may be determined from the face of the appellate record." Samms, 95 N.Y.2d at 57. Because Mr. Jurgins's claim does not depend on "outside facts, documentation or foreign statutes," Santiago, 22 N.Y.3d 900, 903 (2013), and the trial record reveals all that is necessary to conduct a statute-to-statute comparison, J\fr. Jurgins's challenge to his predicate sentence is reviewable without regard to rules of preservation. In finding l\fr. Jurgins's claim "unpreserved," the Appellate Division cited to People v. Smith, 73 .Y.2d 961 (1989), where this Court devoted a mere two sentences to noting (after affirming the judgment below on other grounds) that the defendant's failure to challenge the validity of his federal kidnapping conviction rendered the predicate challenge unpreserved for its review. People v. Jurgins, 107 A.D.3d 595, 595 (1st Dep't 2013). Subsequent decisions demonstrate that this Court did not intend for 15 Smith to be interpreted as a bar to all appellate claims regarding unauthorized predicates. To the contrary, decisional law shows that such claims should be barred only where it cannot be determined from the record that the predicate is, in fact, unauthorized. Once that determination is made, however, the application of any procedural bar falls away, precisely because the sentence is unauthorized. This Court reconciled these principles and the Smith decision in People v. Samms, 95 N.Y.2d at 52. In Samms, the defendant argued for the first time on his appeal to the Appellate Division that he had been sentenced in violation of the statutory requirements for predicates, and the People argued that his failure to challenge the sentence below rendered his claim "unpreserved or waived." Id. at 55. As to preservation, this Court explored its history of exempting unauthorized sentences from that procedural bar. Id. at 56 ("When dealing with unauthorized sentences, this Court has often applied a narrow exception to the preservation rule."). T'his Court quoted from its dear pronouncement in People v. Fuller that "the right to be sentenced as provided by law, though not formally raised at the trial level, preserves a departure therefrom for review in this Court." Id. at 56 (quoting Fuller, 57 N.Y.2d at 156 (holding that sentencing court impermissibly allowed defendant's restitution to be set by Department of Probation)); see also Samms, 95 N.Y.2d at 56-57 (citing People v. Laureano, 87 N.Y.2d 640 (1996) (defendant permitted to appeal sentencing court's unlawful imposition of consecutive sentence even though defendant pleaded guilty and waived right to appeal)); People v. 16 David, 65 N.Y.2d 809 (1985) (district attorney permitted to challenge illegal sentence absent preservation because sentencing court exceeded its power); People v. Lopez, 28 N.Y.2d 148 (1971) (defendant may challenge unlawful consecutive sentence on appeal even though sentence had been negotiated). This Court also rejected the prosecution's reliance on Smith for the argument "that an unlawful adjudication of defendant's 'status' as a predicate felon is different" from the unlawful sentences exempt from the preservation rule. Samms, 95 N.Y.2d at 56-57 (finding that its prior holdings had "collapse[d] any purported distinction between an unlawful 'status' and an unlawful sentence") (citing People v. Morse, 62 N.Y.2d 205, 214 (1984) (entertaining defendants' challenges to the lawfulness of their status as predicate offenders even though not objected to at sentencing)). The Court distinguished Smith by noting the potential record problems that could arise \\nth foreign predicate equivalency challenges: "Determining whether a particular out-of-state comriction is the equivalent of a New York felony may involve production and exanlination of foreign accusatory instruments and, conceivably, the resolution of evidentian; disputes, all in the context of comparisons with the law of other jurisdictions." Samms, 95 N.Y.2d at 57 (emphasis added). Referring to arguments that might require such development, it remarked that "issues of that type must be raised and explored at the trial court level, where a record is developed for appellate review." Id. By contrast, the violation of the predicate statute in Samms could be determined "from the face of the appellate record" 17 because it concerned a sequentiality issue. Id. Thus, Samms did not hold that all challenges to out-of-state predicates must be raised at sentencing; rather, depending on the challenge, some might require the production of foreign documents while others may not. Here, there is no record deficiency that warrants characterizing Mr. J urgins' s claim as an "issue[] of that type" which requires preservation below, because the invalidity of the predicate can be determined "from the face of the appellate record," as in Samms. This Court need not employ any analysis beyond an essential elements comparison. See pp. 8-13, ante; see, e.g., Ramos, 19 N.Y.3d at 419 ("As a general rule (with an exception not relevant here), inquiry is limited to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes.") (quotation omitted). Because that analysis does not require the development of outside facts or documents-reliance on the accusatory instrument is both unnecessary and improper, see pp. 12-14, ante-Mr. Jurgins's claim "falls within the narrow exception to [the] preservation rule permitting appellate review when a sentence's illegality is readily discernable from the trial record." Santiago, 22 N.Y.3d at 903; see also, J'vfuniz, 74 N.Y.2d at 471 ("[I]nasmuch as there are differences in the intent elements of the crimes and the recitals in the New Jersey 'accusation' cannot be considered, it was error to adjudicate defendant a second felony offender on the basis of his Burlington County burglary conviction."). 18 As such, 1\1r. Jurgins could seek to remedy his unlawful predicate either on direct appeal or through a C.P.L. § 440.20 motion. Compare C.P.L. § 440.10(2) (barring post- conviction motion to set aside judgment where grounds could be raised on direct appeal) with C.P.L. § 440.20 (containing no such bar). 2. ]\fr. Jurgins's C.P.L § 440.20 Motion Satisfied Any Preservation Requirement Should this Court nonetheless find that I\1r. Jurgins's challenge is of a "type" that requires preservation or development of the trial record, Mr. Jurgins's C.P.L. § 440.20 motion served either purpose. Notwithstanding these additional efforts, the First Department found Mr. J urgins 's claim "unpreserved and waived," relying on its decision in People v. Kelly,6 and this Court's two-sentence decision in Smith. No support can be found for imposing such a harsh procedural bar. First, a sentence imposed in violation of the "statutory mandates" of the predicate sentencing provisions is unlawful, Samms, 95 N.Y.2d at 55, and the Legislature created C.P.L. § 440.20 for the express purpose of correcting unlawful sentences at the trial level. Subsection one of the statute establishes the right of a defendant, "[a]t any time after the entry of a judgment," to make a motion to "set aside the sentence upon the ground that it was unauthorized, illegally imposed or othenvise invalid as a matter of law." C.P.L. § 440.20(1 ). one of the bars within that statute prevents a predicate challenge. "65 ~\.D.3d 886 (1st Dep't 2009). 19 See C.P.L. § 440.20(2), (3). The Practice Commentaries expressly note that such motions are a proper vehicle for curing an "erroneous sentence as a second or third offender," including a challenge to the court's "decision to count [the prior convictions] as predicates." Peter Freiser, Practice Commentaries to C.P.L. § 440.10, at 10 (J\1cl