The People, Respondent,v.Mark Jurgins, Appellant.

Brief

N.Y.October 22, 2015

APL-2014-00183 To be argued by: CATHERINE M. RENO (10 minutes requested) Supreme Court, Bronx County, Indictment Number 2923/2008 Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, -against- MARK JURGINS, Defendant-Appellant. BRIEF FOR RESPONDENT-APPELLEE ROBERT T. JOHNSON JOSEPH N. FERDENZI District Attorney STANLEY R. KAPLAN Bronx County CATHERINE M. RENO Attorney for Respondent-Appellee Assistant District Attorneys Bronx, New York 10451 Of Counsel (718) 838-7119 (718) 590-6523 (facsimile) Dated: February 4, 2015 PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES i STATEMENT 1 QUESTIONS PRESENTED 3 THE FACTS 3 The Indictment 3 The Plea 4 The Sentence 6 Defendant’s CPL § 440.20 Motion 7 ARGUMENT 12 POINT ONE DEFENDANT WAS PROPERLY ADJUDICATED A SECOND FELONY OFFENDER, AND HIS ATTORNEY PROVIDED EFFECTIVE ASSISTANCE 12 A. Defendant’s Out-of-State Attempted Robbery Conviction Was Properly Used As A Predicate Felony 12 B. Defendant Received Effective Assistance of Counsel 24 POINT TWO DEFENDANT’S CLAIM THAT HE WAS IMPROPERLY ADJUDICATED A SECOND FELONY OFFENDER IS PROCEDURALLY BARRED. 37 A. A Claim that a Prior Conviction Is Not the Equivalent of a New York Felony Pursuant to Penal Law § 70.06 Must Be Preserved 37 B. Defendant Waived His Claim that His Prior Conviction Is Not the Equivalent of a New York Felony Because He Did Not Raise It During the Predicate Felony Adjudication 50 CONCLUSION 68 TABLE OF AUTHORITIES CASES PAGE Foote v. People, 56 N.Y. 321 (1874) . . . . . . . . . . . . . . . . . . . . . . . . . 17 Hill v. Lockhart, 474 U.S. 52 (1985). . . . . . . . . . . . . . . . . . . . . . . . . 25 In Re Schwimmer’s Estate, 8 Misc.2d 550 (NY County Sur Ct, 1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Jackson v. U.S., 359 F.2d 260 (D.C. Cir. 1965) . . . . . . . . . . . . . . . . 22 Matter of North v. Board of Examiners of Sex Offenders of State of New York, 8 N.Y.3d 745 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 People ex rel. Gold v. Jackson, 5 N.Y.2d 243 (1958) . . . . . . . . . . . . passim People ex rel. Goldman v. Denno, 9 N.Y.2d 138 (1961). . . . . . . . . . 13, 21, 47 People ex rel. Newman v. Foster, 297 N.Y. 27 (1947) . . . . . . . . . . . 15, 23, 47 People ex rel. Ryan v. Smith, 50 A.D.2d 1078 (4th Dept. 1975) . . . . 54 People v. Adams, 164 A.D.2d 546 (2d Dept. 1991) . . . . . . . . . . . . . . 60 People v. Anderson, 35 A.D.3d 1209 (4th Dept. 2006) . . . . . . . . . . . 62 People v. Anderson, 48 A.D.3d 1065 (4th Dept. 2008) . . . . . . . . . . . 62 People v. Baldi, 54 N.Y.2d 137 (1981). . . . . . . . . . . . . . . . . . . . . . . . 25, 26 People v. Barton, 200 A.D.2d 888 (3d Dept. 1994) . . . . . . . . . . . . . 60 People v. Benevento, 91 N.Y.2d 708 (1998). . . . . . . . . . . . . . . . . . . 25, 26 i People v. Bennett, 60 A.D.3d 478 (1st Dept. 2009) . . . . . . . . . . . . . . 58, 59 People v. Booker, 301 A.D.2d 477 (1st Dept. 2003) . . . . . . . . . . . . . 59 People v. Caban, 5 N.Y.3d 143 (2005) . . . . . . . . . . . . . . . . . . . . . . . 25, 26 People v. Cardona, 9 A.D. 3d 337 (1st Dept. 2004) . . . . . . . . . . . . . 58, 59 People v. Clifton, 28 A.D.2d 708 (2d Dept. 1967). . . . . . . . . . . . . . . 46 People v. Crippa, 245 A.D.2d 811 (3d Dept. 1997). . . . . . . . . . . . . . 54 People v. Dais, 19 N.Y.3d 335 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 53 People v. David, 65 N.Y.2d 809 (1985) . . . . . . . . . . . . . . . . . . . . . . 39 People v. Drummond, 40 N.Y.2d 990 (1976) . . . . . . . . . . . . . . . . . . 38 People v. Evans, 88 A.D.3d 1029 (3d Dept. 2011) . . . . . . . . . . . . . . 58 People v. Farrar, 52 N.Y.2d 302 (1981) . . . . . . . . . . . . . . . . . . . . . . 33, 56 People v. Fletcher, 98 A.D.3d 899 (1st Dept. 2012) . . . . . . . . . . . . . 62 People v. Ford, 86 N.Y.2d 397 (1995) . . . . . . . . . . . . . . . . . . . . . . . 26, 60 People v. Fuller, 57 N.Y.2d 152 (1982) . . . . . . . . . . . . . . . . . . . . . . 38, 39, 46 People v. Gonzalez, 61 N.Y.2d 586 (1984) . . . . . . . . . . . . . . . . . . . . passim People v. Harris, 61 N.Y.2d 9 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 52 People v. Haynes, 70 A.D.3d 718 (2d Dept. 2010) . . . . . . . . . . . . . . 58 ii People v. Jones, -- N.Y.3d --, 2014 NY Slip Op 08760 (Dec. 16, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 People v. Jurgins, 34 Misc.3d 1217(A) (Sup Ct, Bronx County 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Jurgins, 107 A.D.3d 595 (1st Dept. 2013) . . . . . . . . . . . . . passim People v. Kelly, 65 A.D.3d 886 (1st Dept. 2009) . . . . . . . . . . . . . . . passim People v. Kronick, 308 N.Y. 866 (1955) . . . . . . . . . . . . . . . . . . . . . . 47 People v. Lane, 60 N.Y.2d 748 (1983) . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Laureano, 87 N.Y.2d 640 (1996) . . . . . . . . . . . . . . . . . . . 39 People v. Logan, 2 A.D. 3d 1392 (4th Dept. 2003) . . . . . . . . . . . . . 61 People v. Lopez, 28 N.Y.2d 148 (1971) . . . . . . . . . . . . . . . . . . . . . . 39 People v. Love, 305 N.Y. 722 (1953) . . . . . . . . . . . . . . . . . . . . . . . . 47 People v. Marrero, 3 N.Y.3d 762 (2004) . . . . . . . . . . . . . . . . . . . . . 56 People v. McCullough, 300 N.Y. 107 (1949) . . . . . . . . . . . . . . . . . . 64 People v. McDonald, 1 N.Y.3d 109 (2003). . . . . . . . . . . . . . . . . . . . 24, 25 People v. Morse, 62 N.Y.2d 205 (1984) . . . . . . . . . . . . . . . . . . . . . . 53 People v. Muniz, 74 N.Y.2d 464 (1989) . . . . . . . . . . . . . . . . . . . . . . passim People v. Nadal, 240 A.D.2d 595 (2d Dept. 1997) . . . . . . . . . . . . . . 54 People v. Nieves, 2 N.Y.3d 310 (2004) . . . . . . . . . . . . . . . . . . . . . . . 38 iii People v. Olah, 300 N.Y. 96 (1949). . . . . . . . . . . . . . . . . . . . . . . . . . passim People v. Ostin, 62 A.D.2d 1004 (2d Dept. 1978) . . . . . . . . . . . . . . . 62 People v. Parker, 121 A.D.3d 1190 (3d Dept. 2014) . . . . . . . . . . . . 61, 62 People v. Peque, 22 N.Y.3d 168 (2013) . . . . . . . . . . . . . . . . . . . . . . 26 People v. Perron, 273 A.D. 2d 549 (3d Dept. 2000) . . . . . . . . . . . . . 58, 59 People v. Ramos, 19 N.Y.3d 417 (2012) . . . . . . . . . . . . . . . . . . . . . . 22, 47 People v. Rivera, 71 N.Y.2d 705 (1988) . . . . . . . . . . . . . . . . . . . . . . 25, 26, 35 People v. Rodriguez, 276 A.D.2d 379 (1st Dept. 2000). . . . . . . . . . . 54 People v. Ross, 7 N.Y.3d 905 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 52 People v. Sailor, 65 N.Y.2d 224 (1985) . . . . . . . . . . . . . . . . . . . . . . 53 People v. Samms, 95 N.Y.2d 52 (2000) . . . . . . . . . . . . . . . . . . . . . . . passim People v. Sanford, 162 A.D.2d 560 (2d Dept. 1990) . . . . . . . . . . . . . 60 People v. Santiago, 22 N.Y.3d 900 (2013) . . . . . . . . . . . . . . . . . . . . passim People v. Scarver, 302 A.D.2d 243 (1st Dept. 2003) . . . . . . . . . . . . 59 People v. Smith, 73 N.Y.2d 961 (1989). . . . . . . . . . . . . . . . . . . . . . . passim People v. Stinson, 151 A.D. 2d 842 (3d Dept. 1989) . . . . . . . . . . . . . 60 People v. West, 58 A.D.3d 483 (1st Dept. 2009) . . . . . . . . . . . . . . . . 59 People v. Williams, 49 A.D.3d 1183 (4th Dept. 2008) . . . . . . . . . . . 62 iv People v. Wilson, 13 N.Y.2d 277 (1963) . . . . . . . . . . . . . . . . . . . . . . 64 People v. Yancy, 86 N.Y.2d 239 (1995) . . . . . . . . . . . . . . . . . . . . . . 13,14,19,47 People v. Yusuf, 19 N.Y.3d 314 (2012). . . . . . . . . . . . . . . . . . . . . . . 12,13,21,47 Rosario v. Ercole, 617 F.3d 683 (2d Cir. 2010) . . . . . . . . . . . . . . . . 25 See In re Smathers’ Will, 309 N.Y. 487 (1956) . . . . . . . . . . . . . . . . . 17 Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . . . 11, 24 U.S. ex rel. LaNear v. LaVallee, 306 F. 2d 417 (2d Cir. 1962) . . . . . 64 U.S. v. Shabani, 513 U.S. 10 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . 22 STATUTES PAGE CPL § 200.61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4 CPL § 400.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 CPL § 400.21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim CPL § 440.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 CPL § 440.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim CPL § 470.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 55 D.C. Code § 22-2801. . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 D.C. Code § 22-2802. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 32 D.C. Code § 22-2902. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 29, 30 v D.C. Code § 48-904.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 MD Code § 8-601. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Penal Law § 30.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Penal Law § 60.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Penal Law § 60.27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 45 Penal Law § 65.00. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Penal Law § 65.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 46 Penal Law § 70.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 31 Penal Law § 70.06. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Penal Law § 70.45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 31, 33 Penal Law § 110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Penal Law § 120.00. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Penal Law § 120.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 Penal Law § 140.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Penal Law § 140.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Penal Law § 140.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Penal Law § 155.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Penal Law § 155.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20 vi Penal Law § 160.00. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Penal Law § 160.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Penal Law § 160.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Penal Law § 165.15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 4 Penal Law § 165.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 24 Penal Law § 1943. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 64 Penal Law § 265.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 MISCELLANEOUS PAGE Attorney-General’s Memorandum, N.Y. Legis. Ann., 1964. . . . . . . . 65 McKinney’s Cons Laws of NY, Book 1, Statutes § 98. . . . . . . . . . . . 18 McKinney’s Cons Laws of NY, Book 1, Statutes § 253. . . . . . . . . . . 16 McKinney’s Cons Laws of NY, Book 1, Statutes § 254. . . . . . . . . . . 17 Peter Preiser, Practice Commentaries, CPL § 400.21. . . . . . . . . . . . . 52, 63 vii COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellee, -against- APL-2014-00183 MARK JURGINS, Defendant-Appellant. --------------------------------------------------------------------------X RESPONDENT’S BRIEF STATEMENT The People submit this brief in response to Mark Jurgins’ appeal, taken by permission of the Honorable Jenny Rivera, dated June 24, 2014 (A2),1 from an order of the Appellate Division, First Department, entered June 25, 2013, modifying, as a matter of discretion in the interest of justice, defendant’s sentence from a term of 25 years to 15 years, and otherwise affirming defendant’s conviction, upon a plea of guilty, of Robbery in the First Degree (Penal Law § 165.15[3]) and the special information pursuant to Penal Law § 60.07 and Criminal 1 Numbers preceded by “A” refer to the pages of the Appendix for Defendant-Appellant; Numbers preceded by “SA” refer to the pages of the Supplemental Appendix for Respondent- Appellee. Procedure Law (CPL) § 200.61 alleging that the victim had been operating a for- hire vehicle in the course of providing for-hire services at the time of the commission of the offense, and affirming the January 27, 2012 order of the Supreme Court, Bronx County, which denied defendant’s CPL § 440.20 motion to set aside his sentence. See People v. Jurgins, 107 A.D.3d 595 (1st Dept. 2013). Defendant is currently incarcerated pursuant to this judgment. 2 QUESTIONS PRESENTED 1. Whether defendant’s prior out-of-state conviction constituted a valid basis for his second felony offender adjudication, and whether defendant received effective assistance of counsel. The Appellate Division, in an alternative holding, rejected defendant’s claim on the merits, finding that the lower court properly resorted to the foreign accusatory instrument to determine whether defendant’s prior conviction for Attempt to Commit Robbery in Washington, D.C. was the equivalent of a New York felony, and that it had properly concluded that the conviction was a valid predicate offense, and, as such, that counsel was not ineffective for failing to raise that claim. 2. Whether defendant’s claim that his prior conviction was not a valid basis for his second felony adjudication was preserved when he failed to object to its use during the predicate felony adjudication and did not raise this claim until over one year after the imposition of his sentence. The Appellate Division found that defendant’s claim was waived and unpreserved, and declined to review it in the interest of justice. THE FACTS The Indictment By indictment number 2923/2008, filed on August 11, 2008, the Bronx Grand Jury charged defendant with Robbery in the First Degree (Penal Law § 160.15[3]), Robbery in the First Degree (Penal Law § 160.15[1]), Robbery in the Second Degree (Penal Law § 160.10[2][a]), Robbery in the Third Degree (Penal Law §160.05), Grand Larceny in the Fourth Degree (Penal Law § 155.30[5]), Petit Larceny (Penal Law § 155.25), Assault in the First Degree (Penal Law § 120.10[1]), Assault in the Second Degree (Penal Law § 120.05[1]), Assault in the 3 Second Degree (Penal Law § 120.05[2]), Assault in the Second Degree (Penal Law § 120.05[6]), Assault in the Third Degree (Penal Law § 120.00[1]), and Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[2]) (SA6). The Plea On April 15, 2010, defendant appeared before the Honorable Colleen D. Duffy and offered to plead guilty to Robbery in the First Degree (Penal Law § 160.15[3]) and admit, pursuant to Penal Law § 60.07 and CPL § 200.61, that the victim had been operating a for-hire vehicle in the course of providing for-hire services at the time of the commission of the offense, in satisfaction of the indictment (A7-9). The People recommended a sentence of 11 years of incarceration, consisting of 8 years for the robbery and an additional 3 years pursuant to Penal Law § 60.07, with 5 years of post-release supervision, a permanent order of protection, and waiver of defendant’s right to appeal. The People noted that, otherwise, they would seek a life sentence if defendant were convicted after trial (A7, A17). Defendant expressed his desire to enter a guilty plea and that he had discussed this matter with his counsel, including the plea and proposed sentence, and that he had understood everything that she explained to him and was satisfied with her representation. A discussion of defendant’s foreign convictions ensued. THE COURT: The Court has been informed, and your attorney has discussed, as well, both on and off the 4 record, that you have some out of state convictions which would be the equivalent of felonies, of what the Court recognizes as felonies in this Court; do you understand that? THE DEFENDANT: No. THE COURT: You have out of state convictions. THE DEFENDANT: Yes, ma’am. THE COURT: And if those conviction had occurred in New York State this Court would recognize those convictions as if they were felonies; do you understand that, as if they were felonies that had been committed in New York State? THE DEFENDANT: Okay. THE COURT: And the reason why I’m raising this is because you’re taking a plea to a violent felony. Any subsequent activity by you, criminal activity by you, could be impacted by the fact that you are taking a plea to a violent felony. Have you discussed that with your attorney? Defense counsel then asked defendant if he understood this, and after he said no, the record indicates that he conferred with counsel, and then stated “Okay, I understand.” He indicated that he still wanted to enter a guilty plea (A15-16). Defendant admitted that, on May 1, 2008, while Regino Valerio was providing for-hire vehicles services, that he forcibly stole personal property from Mr. Valerio, and in the course or immediate flight therefrom, used or threatened the immediate use of a knife. The court reiterated the promised sentence, and explained that the sentence was conditioned upon defendant’s cooperation with the Department of Probation; if defendant did not comply with these conditions, the 5 court would sentence defendant to 25 years, and defendant indicated that he understood this (A16-19). The Court Clerk announced that the People had filed a second felony information stating that on October 24, 2000, at Superior Court in Washington, District of Columbia, defendant was convicted of Attempt to Commit Robbery and was sentenced to 14 to 42 months of incarceration (hereinafter “D.C. conviction”) . The Court Clerk told defendant that he could challenge the information on the ground that he was not the person named in the statement or on the ground that the conviction was unconstitutionally obtained. The Court Clerk also noted that failure to challenge the information “at this time is a waiver of that right,” and instructed defendant to discuss the right with his attorney. The record reflects that defendant and his attorney conferred, and afterward, defendant stated that he understood and did not wish to challenge the conviction as unconstitutional. The court then adjudicated defendant a predicate felon (A20-22). The court remanded the defendant pending sentencing (A23). The Sentence On July 2, 2010, defendant appeared before the court for sentencing. Because he had violated an express condition of the plea agreement, the court sentenced defendant to 25 years of incarceration (A24, A33). 6 Defendant’s CPL § 440.20 Motion On September 22, 2011, defendant filed a motion pursuant to CPL § 440.20 seeking to set aside his sentence and be re-sentenced, claiming that he had been unlawfully sentenced as a second felony offender. He asserted that the D.C. statute was broader than comparable New York felonies because it did not require force, and thus his prior conviction was not a proper basis for a second felony offender adjudication. Defendant also asserted that his trial counsel was ineffective for failing to investigate and challenge the use of his prior conviction as a predicate felony offense. He included an affirmation from his trial counsel stating, in pertinent part, While representing Mr. Jurgins, I looked into the validity of the predicate felony offense alleged by the prosecutor in Mr. Jurgins’s case. My recollection is that I concluded that there were no grounds to challenge the alleged predicate. Had I known that there were grounds to challenge the predicate felony offense, I would have advanced those grounds (A44-50, A113). The affirmation contained no explanation, however, as to why she would have done so. On October 17, 2011, the People filed an Affirmation in Opposition. The People, citing People v. Kelly, 65 A.D. 3d 886 (1st Dept. 2009), lv denied 13 N.Y.3d 860 (2009), People v. Smith, 73 N.Y.2d 961 (1989), and People v. Samms, 95 N.Y.2d 52 (2000), asserted that defendant’s claim was procedurally barred 7 because defendant failed to raise the issue of whether his D.C. conviction was the equivalent of a New York felony during the plea proceedings. The People also argued that the court properly considered the D.C. Information to clarify the nature of the offense. The People pointed out that since it did not contain the “taking by stealth or seizure” language, reference to the D.C. Information made clear that defendant’s D.C. conviction was the equivalent of a New York felony. Because his claim lacked merit, his counsel was not ineffective for failing to raise it. Finally, the People requested a hearing to provide the court with additional evidence and testimony to aid in making its decision (A116, A120, A122-23, A126-27). On October 31, 2011, defendant submitted a reply affirmation. He attempted to distinguish Kelly on the ground that the Appellate Division found a waiver only of Kelly’s claim that his plea had not been knowing and voluntary, a claim that this defendant never raised, and on the ground that the Appellate Division did not find Kelly’s counsel ineffective because the predicate conviction at issue was valid. Defendant also argued that his D.C. Information did not narrow the offense of which he had been convicted (A145-50). On November 14, 2010, the People filed a sur-reply affirmation, reiterating their earlier arguments, and also asserting that they could have used another of defendant’s convictions as a basis for a second felony adjudication, and pointing out that an 11-year sentence was favorable given the severity of defendant’s crime 8 and the evidence against him. Finally, the People argued that, even if counsel had erred by not challenging defendant’s predicate status, this was not ineffective assistance given the clarity of the D.C. Information (A154-158, A61-162). The court denied defendant’s motion in its entirety. People v. Jurgins, 34 Misc.3d 1217(A), at *1 (Sup Ct, Bronx County 2012). The court found that defendant had waived his right to challenge his second felony adjudication when he failed to raise this challenge during the plea proceeding. Jurgins, 34 Misc.3d at *5-6. The court noted that defendant’s failure to raise this challenge was calculated, in that the promised sentence constituted the minimum allowable sentence for that crime for a second felony offender, and that his acceptance of the sentence allowed him to escape the uncertainty of the outcome of a trial— especially in light of the severity of his crime. Id. The court explained that the D.C. conviction contained three subdivisions: “(1) ‘by force or violence,’ against resistance; or (2) ‘by force or violence,’ by sudden or stealthy seizure or snatching; or (3) by putting in fear.” Id. at *7-8. The court explained how only two of these prongs constituted felonies in New York, and that in cases where the foreign statute makes more than one act criminal, and only some of the acts would constitute felonies in New York, courts could permissibly examine the accusatory instrument to determine the specific act with which defendant had been charged. Id. at *8. It found that defendant had been charged with attempt to commit robbery 9 under the first and third prongs, and because the use or threatened use of force were elements of these acts, his conviction qualified as a valid predicate felony under New York law. Id. at *9. The court also found that defendant’s counsel had provided effective assistance because the D.C. conviction was a valid predicate, and any challenge to the second felony adjudication would have been futile, and, moreover, there was nothing in the record to suggest that counsel was ineffective. Id. at *9-10. It explained that defendant received an enhanced sentence, not because of ineffective assistance of counsel, but, instead, because of his own failure to comply with the plea conditions. Id. In an order entered April 17, 2012, the Honorable Rolando T. Acosta, Associate Justice of the Appellate Division, First Department, granted defendant’s request for permission to appeal from the denial of the CPL § 440.20 motion, and that appeal was consolidated with his direct appeal. On appeal, defendant raised the same arguments that he had raised below. The People countered that defendant waived his claim that his D.C. conviction was not the equivalent of a New York felony by not raising it during the predicate felony adjudication or at sentencing, and, as such, it was unpreserved for review. Moreover, since the claim was without merit, defense counsel was not ineffective for not raising it. 10 On June 25, 2013, a unanimous panel of the Appellate Division affirmed the denial of defendant’s CPL § 440.20 motion and his judgment of conviction, but reduced his sentence, as a matter of discretion in the interest of justice, to a term of 15 years. Jurgins, 107 A.D.3d at 595-96. It found that defendant’s claim that his out-of-state conviction was not the equivalent of a New York felony was unpreserved and waived, and declined to review it in the interest of justice. Id., citing Kelly, 65 A.D.3d at 887. As an alternative holding, the court rejected defendant’s claim on the merits, explaining that resort to the foreign accusatory instrument had been proper and had established the necessary equivalency. Id. at 595-96. It explained that the D.C. statute criminalized several acts, each of which constituted a category of theft as opposed to constituting mere ways of committing the crime. Id. Further, it found that since defendant’s claim lacked merit, his counsel was not ineffective for failing to raise it, and that 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., citing Strickland v. Washington, 466 U.S. 668, 690 (1984). 11 ARGUMENT POINT ONE DEFENDANT WAS PROPERLY ADJUDICATED A SECOND FELONY OFFENDER, AND HIS ATTORNEY PROVIDED EFFECTIVE ASSISTANCE. A. Defendant’s Out-of-State Attempted Robbery Conviction Was Properly Used As A Predicate Felony. Although this issue has not been preserved (see, supra Point II), defendant’s claim that he was unlawfully sentenced as a second felony offender is meritless because his D.C. conviction constituted a valid predicate offense. A “second felony offender” is someone who has previously been convicted of a felony in New York, or in another jurisdiction if the foreign offense’s “elements are equivalent to those of a New York felony.” People v. Yusuf, 19 N.Y.3d 314 (2012), citing People v. Gonzalez, 61 N.Y.2d 586, 589 [1984]); Penal Law §70.06(1). Under People v. Olah, “as a general rule, [the court’s] inquiry is limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes,” (Yusuf, 19 N.Y.3d at 321, citing People v. Muniz, 74 N.Y.2d 464, 467-68 [1989] and People v. Olah, 300 N.Y. 96, 98 [1949]). “It is the statute upon which the indictment was drawn that necessarily defines and measures the crime.” Olah, 300 N.Y. at 98. As such, the allegations contained in the foreign accusatory instrument may not be considered because they 12 often contain nonessential recitals that go beyond the statutorily required elements and are not necessary to the determination of guilt. Muniz, 74 N.Y.2d at 468. This Court has recognized an exception to Olah, allowing “‘a sentencing court [to] go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction [because] the statute renders criminal not one act but several acts which, if committed in New York, would in some cases be felonies and in others would constitute only misdemeanors.’” Yusuf, 19 N.Y.3d at 321 citing Gonzalez, 61 N.Y.2d at 589. See also People ex rel. Goldman v. Denno, 9 N.Y.2d 138, 140 (1961). For example, in People ex rel. Gold v. Jackson, 5 N.Y.2d 243 (1958), this Court examined a Florida statute, under which breaking into a building with intent to commit a felony therein constituted a felony, as did breaking out of a building after having entered with intent to commit a crime therein. 5 N.Y.2d at 245-46. The Olah exception was implicated because the statue “describes two separate, distinct and different criminal acts,” the first of which, if committed in New York, would be a felony (third-degree burglary, Penal Law § 404), and the latter would be a misdemeanor (unlawful entry, Penal Law § 405), thus examination of the accusatory instrument to determine which crime defendant had committed was proper. Id. at 246. Similarly, in People v. Yancy, 86 N.Y.2d 239 (1995), this Court found that consultation of the foreign accusatory instrument was proper to 13 ascertain which subsection of the crime the defendant had violated where he had been convicted of robbery in New Jersey, which contained three “subsections,” only two of which corresponded to New York felonies. Yancy, 86 N.Y.2d at 246- 47. Where a foreign statute only contains different “ways” that the statutory crime may be committed, rather than distinct criminal acts, however, the Olah analysis must be followed. For example, in Muniz, consideration of the accusatory instrument was improper where the defendant had been convicted of burglary under a New Jersey statute requiring the intent to commit any “offense,” which was broader than the New York burglary’s requirement of intent to commit a crime, because the New Jersey statute also included less culpable levels of intent. Muniz, 74 N.Y.2d at 469. The majority rejected the dissent’s position that the New Jersey statute satisfied the “several acts” test because “unlawfully entering with intent to commit a theft” and “unlawfully entering with intent to commit a mere offense” were conceptually different acts, explaining that this represented a “failure to distinguish between the specific criminal acts required by a penal statute and the various ways in which the statutory crime may be committed.” Id. at 470- 71. When the Olah exception is implicated, the court may examine the foreign accusatory instrument to determine which of the specific crime or crimes within 14 the statute the defendant had been convicted of. This examination is not without limits, “facts not specified in the statute upon which the indictment is based may not be rendered material or operative by merely stating them in the indictment.” Olah, 300 N.Y. at 99. For example, in People ex rel. Newman v. Foster, 297 N.Y. 27 (1947), the defendant had been convicted under a New Jersey statute prohibiting the carrying of a concealed revolver, pistol, or firearm. In New York, this behavior only constituted a misdemeanor unless the person had previously been convicted of any crime. But, if the New Jersey information had included an allegation that the defendant had been previously convicted of a crime, this recital “would have been immaterial, surplusage under the statute” (Newman, 297 N.Y. at 30) and a court would not be permitted to examine that allegation in determining whether Penal Law § 70.06 had been satisfied (see Olah, 300 N.Y. at 102). In contrast, when “the recitals in the accusatory instrument that describe the particular act or acts underlying the charge are necessary to the extent that they isolate and identify the statutory crime of which the defendant was accused,” they are not merely surplusage and may be properly considered. Muniz, 74 N.Y.2d at 468. In other words, “[t]he allegations of the accusatory instrument may be referred to when necessary to clarify the statutory charge, to limit or narrow the basis for the conviction, but they may not be used to enlarge or expand the crime charged.” Gonzalez, 61 N.Y.2d at 561. At the same time, “[o]nly those facts 15 alleged in the indictment or information which are not operative or material under the applicable criminal statute of the foreign jurisdiction are to be discounted in ascertaining whether the crime charged is to be deemed a felony in New York.” Jackson, 5 N.Y.2d at 245. Here, the statute at issue contains distinct, separate criminal acts, and thus should be analyzed under the Olah exception. Defendant was convicted of Attempt to Commit Robbery (D.C. Code § 22-2902, currently D.C. Code § 22-2802). D.C. Code § 22-2801 defines Robbery, in pertinent part, as follows: 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. Code § 22-2801. An examination of the statute’s grammatical structure reveals that the statute contains three separate and distinct criminal acts. The verb “take” is modified by two distinct, dependent adverb clauses: “by force or violence” and “by putting in fear.” The inclusion of the word “or” and omission of a comma before “by sudden stealthy seizure or snatching” indicates that “by putting in fear” was intended to be separate and distinct from “whether against resistance or by sudden or stealthy seizure or snatching.” See McKinney’s Cons Laws of NY, Book 1, Statutes § 253, citing In Re Schwimmer’s Estate, 8 Misc.2d 550 (NY County Sur Ct, 1944) (“The 16 use of a comma before the disjunctive ‘or,’ in construing a sentence in a statute, ordinarily indicates an intention to discriminate the first half of the sentence from the second half.”). Indeed, if the legislature had intended for “against resistance,” “by sudden or stealthy seizure or snatching” and “by putting in fear” to modify “force or violence,” it would have written the statute as follows: “Whoever by force or violence, whether against resistance, 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.” Thus, one of the discrete crimes the D.C. statute contains is a “taking from a person or immediate actual possession of another anything of value by putting in fear.” Moreover, because the phrase “whether against resistance or by sudden or stealthy seizure or snatching” is offset by commas and directly follows “by force or violence,” it modifies “by force or violence.” See McKinney’s Cons Laws of NY, Book 1, Statutes § 254, citing Foote v. People, 56 N.Y. 321, 328 (1874). The “force or violence” portion of the statute can be further divided into two separate and distinct acts. The legislature’s inclusion of the word “violence” cannot be assumed to serve no purpose, and must be given a distinct meaning from “force.” See In re Smathers’ Will, 309 N.Y. 487, 495 (1956) (citations omitted) (“It is well settled that in the interpretation of a statute we must assume that the Legislature did not deliberately place a phrase in the statute which was intended to 17 serve no purpose, and each word must be read and given a distinct and consistent meaning.”). See also McKinney’s Cons Laws of NY, Book 1, Statutes § 98 (citations omitted) (same). Further, the phrasing of “force or violence” is significant. The legislature chose to use the disjunctive “or,” which can mean either “only force or violence,” or “force or violence or both,” instead of the conjunctive “and,” which would require the acts modifying it to include both “force” and “violence.” The first act, “against resistance,” requires both force and violence: violence to overcome the victim’s resistance to the taking, and also the force against the property needed to take it. The second act, “by sudden or stealthy seizure or snatching,” requires only the force against the property needed to take it. Neither a “sudden or stealthy seizure” or a “snatching” contemplates violence, indeed requiring such an element would defeat the purpose of criminalizing a quick and/or secretive removal of property. This does not simply create two different “ways” of committing a taking by force, however, since one of the acts contains an element that the other does not. This is consonant with a practical reading of the statute, which demonstrates that, like breaking in and out of a building (Jackson, 5 N.Y.2d at 245-46), these are two “discrete, mutually exclusive acts” (Muniz, 74 N.Y.2d at 469): the first is a direct, violent and forceful confrontational taking, while the second is a sudden, 18 secretive, and undetected taking. Therefore, this portion of the statute contains two additional, distinct acts: taking from a person or immediate actual possession of another anything of value by force and violence against resistance, and taking from a person or immediate actual possession of another anything of value by force by sudden or stealthy seizure or snatching. Thus, the D.C. Robbery statute creates three separate and distinct crimes: (1) taking from a person or immediate actual possession of another anything of value by force and violence against resistance, (2) taking from a person or immediate actual possession of another anything of value by force by sudden or stealthy seizure or snatching, and (3) taking from a person or immediate actual possession of another anything of value by putting in fear. Unlike the different levels of the same aggravating circumstance making up in the “ways” the statute in Muniz could be committed (see Muniz, 74 N.Y.2d at 469), the D.C. statute contains several acts made up of separate and distinct conduct. The D.C. statute more closely resembles the New Jersey robbery statute in Yancy, which criminalized, as separate acts, inflicting bodily injury or using force against another and threatening or putting another in fear (Yancy, 86 N.Y.2d at 246-47), and the Florida statute criminalizing breaking into a building with the intent to commit a felony and breaking out of a building after having entered with the intent to do the same (Jackson, 5 N.Y.2d at 245-46). 19 A comparison of the D.C. robbery statute to the New York Penal Law demonstrates that the D.C. statute contains multiple, distinct criminal acts, some of which would be New York felonies, and one of which would be a misdemeanor. In New York, robbery, a felony, is defined as “forcible stealing,” meaning “in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person.” Penal Law § 160.00. The first and third criminal acts delineated in the D.C. statute are equivalent to robbery in New York since they require a taking of property by violence and force against resistance and by putting a person in fear, respectively. The second act, however, does not involve the use or threatened use of physical violence or force against a person, and, as such, is akin to fourth-degree grand larceny, a class E felony (Penal Law § 155.30[5]). “A person is guilty of grand larceny in the fourth degree when he steals property and when [] [t]he property, regardless of its nature and value, is taken from the person of another.” Penal Law § 155.30(5). Here, defendant was convicted of Attempt to Commit Robbery, and the New York equivalent of the first and third offenses listed in the D.C. robbery statute would be Attempted Robbery (Penal Law §§ 110/160.00), a felony, while the New York equivalent of the second offense listed in the D.C. statute would be Attempted Grand Larceny (Penal Law §§ 110/155.30[5]), or as defendant suggests, Jostling (Penal Law § 165.25) (see defendant’s brief at 11), both misdemeanors. 20 Thus, the court’s consideration of the D.C. information to “limit or narrow the basis for the conviction,” in this case was permissible pursuant to the exception to the Olah rule (Gonzalez, 61 N.Y.2d at 561). See also Yusuf, 19 N.Y.3d at 321 citing Gonzalez, 61 N.Y.2d at 589; Denno, 9 N.Y.2d at 140-41. Defendant maintains that the Olah exception is not implicated because “the statute is not divisible into subsections that encompass only felony-level conduct in New York” (defendant’s brief at 13). In reaching this conclusion, defendant does not conduct the side-by-side comparison of the elements as articulated in the statutes. Instead, he only examines particular parts of the D.C. statute, for instance, he ignores the statute’s phrase “by putting in fear” (see defendant’s brief at 10-13), which constitutes a separate act that does not require “force or violence.” In the elements he does evaluate, he does not rely on the elements as they exist in the statute, but instead relies almost exclusively on various D.C. courts’ interpretations of the evidence needed to satisfy certain elements (see defendant’s brief at 10-11). New York courts, however, are not bound by foreign decisions in ascertaining whether a particular conviction constitutes a felony under New York law. Instead, the “strict equivalency” analysis 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, citing Olah, 300 NY at 98 (emphasis supplied); Yusuf, 19 N.Y.3d at 321. See also Gonzalez, 61 N.Y.2d at 589 (same). 21 Consideration of out-of-state cases would needlessly complicate this analysis, which is necessarily based on New York law.2 An examination of the D.C. Information establishes that defendant’s conviction was the equivalent of a New York felony. The D.C. Information reads: On or about July 29, 2000, within the District of Columbia, Mark Jurgins, by means of certain 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 Eva Maier. (Attempt to Commit Robbery (Force and Violence), in violation of 22 D.C. Code, Section 2902) (A130). The operative facts are that defendant attempted by force and violence, against resistance and by putting in fear, to steal and take a purse from the person of another. These recitals are necessary to “isolate and identify the statutory crime 2 Although in People v. Ramos, 19 N.Y.3d 417 (2012), this Court cited to a United States Supreme Court case, this only served to bolster the conclusion that it had already reached by comparing the federal conspiracy statute (21 U.S.C. § 846) with the New York statute: that the commission of an overt act by one of the conspirators in furtherance of the conspiracy was required under New York, but not under federal, law. Ramos, 19 N.Y.3d at 419-20. Ramos seems to be an outlier in this respect. Significantly, the actual holding of that U.S. Supreme Court case was that § 846 did not have an overt act requirement—in fact, the Court expressly stated that it had granted certiorari to resolve a circuit split over this issue, explaining that the Ninth Circuit had held that indictments under § 846 did not need to allege an overt act, but had also held that proof of an overt act was required at trial, and the other 11 Circuits had held that § 846 did not require proof of an overt act at all. U.S. v. Shabani, 513 U.S. 10, 12 (1994). Thus, whether the statute required an overt act was not dicta in the context of evaluating the statute in a completely different context, as was the language defendant points to in Jackson v. U.S., 359 F.2d 260 (D.C. Cir. 1965) (see defendant’s brief at 10, 12, 13), wherein that court was analyzing indictment the D.C. Robbery statute after a trial on an indictment in the context of the technical issue of variance under a plain error standard of review. 22 of which the defendant was accused” (Muniz, 74 N.Y. at 468), and do not enlarge or expand the crime charged (Gonzalez, 61 N.Y.2d at 561). Unlike in Foster, none of these facts are immaterial surplusage and beyond the statute; instead, using the language from the statute itself, the recital expressly limits the crimes under the statute to which defendant pleaded guilty. Like in Jackson, however, where the actual felony that the defendant had intended to commit (“therein, to wit: Grand Larceny”) was not an operative and material fact (Jackson, 5 N.Y.2d at 246), here, “that is, assaulting” is not an operative fact because the conviction did not turn upon it. The operative facts make clear that defendant pled guilty to only the first and third acts criminalized under the D.C. statute, which both correspond to New York felonies. The D.C. Information expressly invokes the language of the third (“by putting in fear”) and first (“by force and violence against resistance”) Notably, the D.C. Information does not merely track the statutory language, but actually changes the statutory “or” in “force or violence” to an “and” in the Information (“force and violence”), making clear that that portion referenced the only third, not also the second, act in the statute. Further, completely absent from the accusatory information is the language of the second act of the D.C. robbery statute, “stealthy or sudden seizure or snatching.” As in Jackson, this Court cannot assume that defendant may have been 23 convicted of an act which was expressly absent from the accusatory instrument. 5 N.Y.2d at 246. A reading of the operative facts in the D.C. Information foreclose any indication that defendant pled guilty to and was convicted of conduct akin to New York’s Penal Law § 165.25(1) (stating, in pertinent part, that a person is guilty of jostling “when, in a public place, he intentionally and unnecessarily places his hand in the proximity of a person’s pocket or handbag”). Thus, defendant was clearly charged with, and pled guilty to, only the first and third acts of the D.C. statute. Given that this conduct would have been a felony if committed in New York, the court below properly used defendant’s D.C. conviction as a predicate offense in adjudicating him a second felony offender. B. Defendant Received Effective Assistance of Counsel. Defendant’s plea counsel provided effective assistance. Defendant is entitled to effective representation of counsel under both federal and New York law. Under federal law, defendant bears the burden of proving that counsel’s performance was deficient, in that counsel’s acts or omissions were “outside the wide range of professionally competent assistance” and also demonstrate that defendant suffered prejudice due to that deficiency. Strickland, 466 U.S. at 687; People v. McDonald, 1 N.Y.3d 109, 113-14 (2003). To satisfy the prejudice prong, a “defendant must show that there is a reasonable probability that, but for counsel’s errors, he would 24 not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S.52, 59 (1985); McDonald, 1 N.Y.3d at 114. Under New York law, to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that his attorney failed to provide meaningful representation. People v. Caban, 5 N.Y.3d 143, 152 (2005), citing People v. Benevento, 91 N.Y.2d 708, 712 (1998) and People v. Baldi, 54 N.Y.2d 137, 147 (1981). To do so, “a defendant must ‘demonstrate the absence of strategic or other legitimate explanations’ for counsel’s allegedly deficient conduct.” Caban, 5 N.Y.3d at 152, citing People v. Rivera, 71 N.Y.2d 705, 709 (1988). The standard for measuring counsel’s performance has been stated as follows: “So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met.” People v. Baldi, 54 N.Y.2d 137, 147 (1981). While the state’s “meaningful representation” standard has a prejudice component, it differs from the federal rule in that it focuses on the “fairness of the process as a whole rather than [any] particular impact upon the outcome of the case.” Benevento, 91 N.Y.2d at 714.3 Perfect representation is not required. Benevento, 91 N.Y.2d at 712. A court’s “most critical concern in 3 If defendant’s claim fails under the state standard, his argument that the federal constitutional standard was violated must likewise be rejected because the New York state standard “offers greater protection than the federal test.” Caban, 5 N.Y.3d at 156; see also Rosario v. Ercole, 617 F.3d 683, 685 (2d Cir. 2010). 25 reviewing claims of ineffective assistance of counsel is to avoid both confusing true ineffectiveness with mere losing tactics and according undue significance to retrospective analysis.” Baldi, 54 N.Y.2d at 146. Counsel is presumed effective (Strickland, 466 U.S. at 687), and “it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged shortcomings.” Benevento, 91 N.Y.2d at 712 (quoting Rivera, 71 N.Y.2d at 709). “In the context of a guilty plea, a defendant has been afforded meaningful representation when he . . . receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel.” People v. Ford, 86 N.Y.2d 397, 404 (1995), partially overruled on other grounds by People v. Peque, 22 N.Y.3d 168, 176 (2013), cert denied sub nom. Thomas v. New York, 135 S.Ct 90 (2014). Furthermore, “[t]here can be no denial of effective assistance of trial counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ [citation omitted].” Caban, 5 N.Y.3d at 152. A review of the record demonstrates that trial counsel provided meaningful assistance. Here, defendant is unable to demonstrate that his counsel’s performance was deficient because his D.C. conviction was a valid predicate felony and he was properly adjudicated a second felony offender (see Point IA, supra). During the plea proceeding, the court twice stated that defendant had out-of-state convictions that would have been the equivalent of felonies in New York, and acknowledged 26 that it had discussed this with defense counsel both on and off the record (A15). In her affirmation in support of defendant’s CPL § 440.20 motion, defense counsel acknowledged that she had assessed the validity of the alleged predicate offense and concluded that there were no grounds to challenge it (A113). The trial court and a unanimous Appellate Division also determined that the D.C. conviction constituted a valid predicate offense (Jurgins, 34 Misc.3d 1217(a), at *7-9, 10; Jurgins, 107 A.D.3d at 595-96). Raising an objection to the use of defendant’s D.C. conviction as a predicate felony would have been futile, and counsel cannot be considered ineffective for failing to do so. See People v. Lane, 60 N.Y.2d 748, 750-51 (1983) (finding counsel was not ineffective for failing to raise futile challenge defendant’s status as a second felony offender). Further, not raising a challenge to the use of defendant’s D.C. conviction as a predicate was a calculated, strategic decision to enable defendant to secure a favorable plea agreement. In exchange for pleading guilty to first-degree robbery and admitting that the victim had been operating a for-hire vehicle at the time of the crime pursuant to Penal Law § 60.07, waiving his right to appeal, and receiving and order of protection in favor of the victim, defendant would receive a sentence of 11 years’ incarceration with 5 years’ post-release supervision as long as he abided by the court’s conditions (A7). Defendant’s adjudication as a second felony 27 offender was “part-and-parcel” of the negotiated plea agreement (Jurgins, 27 Misc. 3d 1228[A], at *6; A115). The promised sentence of 11 years plus 5 years of post-release supervision was a legal—and lenient—sentence for a first and second felony offender standing convicted of a first-degree robbery, a class B violent felony. A first felony offender standing convicted of a class B violent felony offense faced a sentence exposure of 5 to 25 years, with 2½ to 5 years of post-release supervision (Penal Law §§ 70.02[1][a], [3][a], 70.45[2][f]). A second felony offender under the same conditions faced a sentence exposure of 8 to 25 years plus 5 years of post-release supervision (Penal Law §§ 70.06[1][a], [6][a], 70.45[2]). The sentencing enhancement under Penal Law § 60.07, from between 3 and 5 years above the minimum sentence (see Penal Law §§ 60.07[1] and [2][a]), remained the same regardless of whether he was a first or second felony offender. As such, the range for a first felony offender would have been 8 to 25 years with 2½ to 5 years of post-release supervision, while a second felony offender would have faced 11 to 25 years with 5 years of post-release supervision. Adjudication as a second felony offender only raised the minimum possible sentence by 3 years; the maximum possible sentence remained the same. The promised sentence constituted the minimum sentence for which defendant was eligible as a second felony offender, and, considering his criminal 28 history and the vicious nature of the instant crime, was a lenient sentence whether defendant was a first or second felony offender. Defendant’s instant conviction stemmed from his actions on May 1, 2008, wherein he attacked cab driver Regino Valerio. Defendant held a knife against Mr. Valerio’s neck and demanded he give defendant money (SA10). After Mr. Valerio gave defendant his money, defendant punctured Mr. Valerio’s liver with a serrated kitchen knife, causing a deep laceration, excessive bleeding, and blood to enter Mr. Valerio’s lungs (SA10-11). At this point, Mr. Valerio felt that defendant was trying to “take his life” (SA11). Mr. Valerio spent four days in the Intensive Care Unit, and another two-to-three days under regular care in the hospital (id.). Nearly three years after defendant’s attack on him, Mr. Valerio remained unable to work as a cab driver on a full-time basis, and after working for six hours, he experienced “excruciating pain” (id.). When told of the promised sentence of 11 years of incarceration, Mr. Valerio lamented that this was not “nearly enough time” (id.). Further, defendant has an extensive criminal history, spanning fifteen years and three states,4 indicating that he is a career criminal. 4 (SA12, SA14-29; A130-141, A160); Jurgins, 34 Misc.3d at *6 n 5. In 1993, defendant was convicted of Uttering False Document (MD Code §§ 8-601[b] and [c][2]) (SA28). In 1994, defendant was convicted of violating the Uniform Control Substance Act Possession for cocaine possession (D.C. Code § 48-904.01[d][1]), a felony (SA11, SA25, A160). Defendant was convicted of his first felony in 1996, Attempt to Commit Robbery (D.C. Code § 22-2902) (SA11, SA25). On April 19, 2000, defendant was convicted of Escape from an Institution (22 D.C. Code §2601[a][1]), a felony, under D.C. Superior Court, 29 (footnote continued on the following page) Moreover, taking this plea offer also allowed defendant to avoid the uncertainty of a trial. The evidence against defendant was overwhelming, including a severely injured and cooperative complaining witness, an eyewitness who positively identified defendant, the bloody knife defendant was in possession of when he was arrested that matched the victim’s description of the knife used in the attack, and defendant’s own statement that the knife belonged to him (A161, SA7, SA10). A conviction after trial, regardless of whether defendant was a first or second felony offender, exposed him to a possible sentence of 25 years of incarceration. Even if defendant had not been adjudicated a second felony offender, there is no indication that the People were willing to offer a plea that included a sentence of fewer than 11 years, nor that a lower sentence would have been mandated if defendant would have pleaded guilty to another of the higher charges on the indictment. The People adamantly denied defendant’s assertion in his CPL § 440.20 motion, which he renews on appeal, that “[t]he 11-year sentence reflected the parties’ intention to secure the lowest possible sentence” for defendant (A39; Case Number F1380-2000 (A160). Defendant was convicted of Attempt to Commit Robbery (D.C. Code § 22-2902) in 2000, which provided the basis for his instant second felony adjudication (A130-41; SA25). In 2007, defendant was convicted of Criminal Trespass in the Second Degree (Penal Law § 140.15) and Criminal Trespass in the Third Degree (Penal Law § 140.10) in Supreme Court, Bronx County, under Case Number 30592C-2006 (SA12, SA20-21). Finally, in 2007, defendant was convicted of Possession of Burglar Tools (Penal Law § 140.35) in Supreme Court, Bronx County, under Case Number 25421C-2007 (SA12, SA19). 30 defendant’s brief at 3), stating that this was “a mischaracterization and unsupported by the record” (A127). Instead, the People noted that even if defendant had been correct in asserting that 8 years, rather than 11 years, was the minimum sentence for which he was eligible, given his extensive criminal history, the overwhelming evidence against him, and the vicious nature of the instant offense, “a sentence of eleven years was extremely favorable and vitiates claims of ineffective assistance of counsel” (A161). As explained, supra at 28, 11 years was a legal, and lenient, sentence for first-degree robbery whether defendant was a first or second felony offender (see Penal Law §§ 70.02[1][a], [3][a], 70.45[2][f], 70.06[1][a], [6][a], 70.45[2]). This would have been a legal sentence for a first felony offender for other violent felonies with which defendant had been charged, including first- degree assault (see Penal Law § 70.02[1][a], [3][a]) and second-degree robbery (see Penal Law § 70.02[2],[3][b]). Thus, even if defendant would not have been adjudicated a second felony offender, he would not have received a plea offer including a sentence lower than 11 years. Further indication that defense counsel’s decision not to object to the predicate felony offense was strategic and immaterial, is that, if he would have done so, the People would have revoked the plea offer and would have sought a life sentence upon conviction. The record supports this statement. At the plea proceeding, the People made clear that “[i]f the defendant does not take this offer 31 [of 11 years’ incarceration and 5 years post-release supervision in exchange for a plea to the class B violent felony], at this time, the People, should the defendant be convicted of any crimes on the indictment, the People will be seeking a life sentence against him” (A7). This would be accomplished by using defendant’s other prior felony convictions as a basis for adjudicating him a persistent felony offender, because, in addition to the conviction used as his predicate, he had also been convicted of Attempt to Commit Robbery on July 19, 1996 in D.C. (Superior Court of the District of Columbia Case Number F4434-96) (see A160). Both convictions fulfilled the requirements of Penal Law § 70.10(1): A sentence of up to 3 years’ incarceration is authorized upon conviction of § 22-2802 Attempt to Commit Robbery, and defendant received a sentence of 14 to 42 months for his 2000 conviction and 1 to 3 years for his 1996 conviction (see Penal Law 70.10[b][i]), and defendant was imprisoned under sentence for these convictions prior to the commission of the present felony (see Penal Law 70.10[b][ii]). Further, given the violent nature of the instant crime and defendant’s extensive criminal history, a court would likely find that “extended incarceration and life-time supervision will best serve the public interest,” and that a life sentence would be appropriate (see Penal Law § 70.10[2]). When a court determines that a defendant is a persistent felony offender, it is authorized to impose the sentence of imprisonment authorized for a class A-I 32 felony under Penal Law § 70.00. That section provides that the minimum period of imprisonment shall not be less than 15 years nor more than 25 years (Penal Law § 70.00[3][a][i]) and the maximum term shall be life imprisonment (Penal Law § 70.00[2][a]), plus 5 years of post-release supervision (Penal Law § 70.45[2]). Thus, even if the court determined that a life sentence was not appropriate, the minimum sentence for which defendant would be eligible would be at least 4 years longer than the sentence the People offered in the conditional plea agreement. Further, assuming arguendo that defendant had successfully objected to the use of his D.C. Attempt to Commit Robbery conviction as a predicate conviction during the plea proceeding, and that the People did not substitute another conviction (see, infra at 34) or withdraw the plea offer, 11 years was still a valid, and lenient, sentence for a first felony offender standing convicted of first-degree robbery. Moreover, the court could have refused to impose the negotiated sentence. See CPL § 220.10(4); see generally People v. Farrar, 52 N.Y.2d 302, 307 (1981). The court’s acknowledgement that the negotiated plea agreement, which included the determination of defendant as a second felony offender, “was very favorable in light of the charges facing Defendant – that he lacerated the liver of a cab driver during a robbery with a knife – and Defendant’s criminal history of felony convictions in New York and elsewhere” (Jurgins, 34 Misc.3d 1217[a] at *6), suggested that it may have refused to accept a plea to the lower end of the 33 sentencing range, especially if defendant would not have been adjudicated a second felony offender, which the court twice stated it understood to be part of the plea agreement (see Jurgins, 34 Misc.3d at *6). Further, defendant is unable to demonstrate that his attorney’s failure to object to the use of his 2000 conviction as a predicate felony offense prejudiced him because even if she had successfully raised such a claim, defendant still would have been adjudicated a second felony offender, if not a persistent felony offender. If she had challenged the validity of defendant’s 2000 conviction, the People could have substituted one of defendant’s other prior felony convictions, such as Escape from an Institution on April 19, 2000 (Superior Court of the District of Columbia Case Number F1380-00) or felony Cocaine Possession on July 19, 1996 (Superior Court of the District of Columbia Case Number F7335-94) (see A160).5 In other words, defendant was, at minimum, a second felony offender regardless of the validity of his 2000 conviction as a predicate, and thus an objection to the use of this particular crime would, at best, have resulted in the substitution of another predicate felony offense. Considering the People’s clear pronouncement that they would have proceeded to trial and sought a life sentence if defendant did not accept 5 In their response to defendant’s CPL § 440.20 motion, the People asserted that these prior convictions constituted valid predicate felony offenses and could have been used to establish defendant’s predicate status in the event that he challenged the use of his 2000 Attempt to Commit Robbery conviction (see A160). In his sur-reply affirmation, defendant failed to challenge, much less refute, the validity of these convictions as predicate felony offenses (see A164). 34 the conditional plea agreement, an objection to the second felony adjudication would have put defendant in a much worse position than neglecting to raise an objection during the predicate felony adjudication—especially considering that the D.C. conviction was a valid predicate.6 Defendant relies on defense counsel’s affirmation to assert that counsel did not have a strategic reason for neglecting to challenge the use of the D.C. predicate (see defendant’s brief at 23). This brief statement falls short of “demonstrat[ing] the absence of strategic or other legitimate explanations” for counsel’s failure to raise this challenge (Rivera, 71 N.Y.2d at 710). Instead, a close reading of the affirmation, as well as consideration of the circumstances under which it was crafted and the context of the plea negotiations, contradict this assertion and indicate that counsel’s failure to object was strategic. Defendant’s CPL § 440.20 motion claiming that his sentence was illegal because his D.C. conviction was not the equivalent of a New York felony included an exhibit entitled “Affirmation in Support of C.P.L. §440.20 Motion” from his trial counsel (A113). The affirmation is not dated, but it was presumably prepared close to the time of the CPL § 440.20 motion in which it was written “in support.” 6 Ultimately, defense counsel’s failure to challenge predicate had no effect on his sentence because defendant violated the conditional plea. Further, defendant has not demonstrated that he would have received a different sentence but for counsel’s conduct. 35 Given that the CPL § 440.20 motion was filed on September 22, 2011, which was 17 months after the predicate felony adjudication, and counsel does not say that she referenced any notes or documents related to the case, she may not have remembered details of the case that the record demonstrates she was aware of during the plea proceeding, such as the People’s insistence that if defendant did not accept the plea agreement, they would seek a life sentence after trial (see A7), or that defendant had numerous felony convictions that would be the equivalent of New York felonies and had admitted as much in open court (see A15). What is missing from this affirmation speaks volumes. Counsel did not explain why she would have challenged the predicate felony offense. Moreover, counsel does not concede that the D.C. conviction was not, in fact, a valid predicate. Instead, her statement merely reflects her belief, with the assumption that she would have prevailed and detached in time from the pertinent details and circumstances of the case, that she would have raised a successful challenge to the predicate felony offense. In other words, this statement is little more than a general acknowledgement that, if she would have been aware of something that would have benefitted her client, she would have used it. The People directly controverted this affirmation (see A160). Pursuant to CPL §§ 440.30(3) and (5), if the court were to have given the affirmation any credence, it could not have granted the motion without first granting the People’s request for a hearing (see A116), during 36 which this affirmation would have been scrutinized and its hollow nature would have been exposed. But, a hearing was not necessary because defendant’s submission failed to constitute a prima facie showing that he was entitled to one pursuant to CPL § 440.30 (see People v. Jones, -- N.Y.3d --, 2014 NY Slip Op 08760, at *8 (Dec. 16, 2014). POINT TWO DEFENDANT’S CLAIM THAT HE WAS IMPROPERLY ADJUDICATED A SECOND FELONY OFFENDER IS PROCEDURALLY BARRED. A. A Claim that a Prior Conviction Is Not the Equivalent of a New York Felony Pursuant to Penal Law § 70.06 Must Be Preserved. In his instant brief, defendant asserts, for the first time, that a claim that an out-of-state conviction was not the equivalent of a New York felony and was thus improperly used in a second felony offender adjudication, is not subject to the preservation rule. Defendant did not raise this claim at any point below. When, in response to defendant’s CPL § 440.20 motion, the People argued that this claim was procedurally barred under Samms, Smith, and Kelly because defendant failed to raise it at the plea proceeding (A120-21), defendant responded only by attempting to distinguish Kelly, stating that that unlike Kelly, he was arguing for vacatur of his sentence on the basis that defense counsel was ineffective for failing to challenge the prosecution’s alleged predicate (A143-44). Defendant also failed to raise the argument that this claim should be excepted from the preservation 37 requirement at the Appellate Division, and instead only stated that the issue “actually raised on appeal” was that counsel was ineffective for failing to challenge the predicate, which was properly developed through a CPL §440.20 motion below (defendant’s Appellate Division reply brief at 4-5). Because defendant failed to raise this claim below, he cannot do so for the first time now. In any event, defendant’s claim that he was improperly adjudicated a second felony offender is procedurally barred since it was not preserved for review and is not subject to the exception to the preservation requirement. As a general matter, a party must raise a timely objection to a ruling of a trial court to preserve it as a question of law. CPL § 470.05. “Failure to challenge a procedure at a time when a trial court still has an opportunity to take effective correction action as a general rule will forfeit the right of review by this court.” People v. Fuller, 57 N.Y.2d 152, 156 (1982), citing CPL § 470.05(2) and People v. Drummond, 40 N.Y.2d 990 (1976), cert den sub nom. New York v. Luis J., 431 U.S. 908 (1977). This Court has, however, recognized a narrow exception to the preservation requirement that permits appellate review when a court exceeds its powers and imposes a sentence that is illegal in a respect that is readily discernible from the trial record. People v. Nieves, 2 N.Y.3d 310, 316 (2004); People v. Santiago, 22 N.Y.3d 900, 903 (2013). This “illegal sentence” exception had been found to include, inter alia, claims regarding sequentiality (see Samms, 95 N.Y.2d at 55-58 38 [the defendant was sentenced for the felony serving as the predicate after he committed the crimes underlying the conviction for which he was sentenced as a second felony offender in violation of Penal Law § 70.04’s chronological requirements]), unlawful consecutive sentences (see People v. Lopez, 28 N.Y.2d 148, 152 [1971] [imposing consecutive sentences for offenses committed as part of a single incident, in violation of Penal Law § 70.25(3)]; People v. Laureano, 87 N.Y.2d 640, 643-45 [1996] [imposing consecutive sentences in violation of Penal Law § 70.25(2)]), impermissible delegations of judicial authority (see Fuller, 57 N.Y.2d at 155-57 [the court allowed the Department of Probation to set the amount of restitution, in violation of Penal Law §§ 65.10(2)(g) and 60.27(3)]), imposing a lifetime probation without meeting the Penal Law’s prerequisites (see People v. David, 65 N.Y.2d 809, 810 [1985] [the court sentenced the defendant to lifetime probation even though Penal Law § 65.00(1)(b)’s prerequisites had not been met]), and the use of an out-of-state conviction as a predicate felony when the defendant could not have been prosecuted for that crime in New York due to his age (see Santiago, 22 N.Y.3d at 903-04 [defendant’s Pennsylvania conviction was not a predicate felony within Penal Law § 70.06(1)(b) because under Penal Law § 30.30(1), a person must be at least 16 years old to be criminally responsible for his conduct, and that the defendant was 15 at the time of his Pennsylvania conviction was clear on the face of the record]). 39 A characteristic common to all of these cases is their facial illegality; that each court exceeded its authority was manifest based on dispositive facts on the face of the record, and analysis beyond the consultation of relevant New York statutes was not required. For example, the date on which the sentence for the proffered predicate offense was imposed and the date of the commission of the instant offense are dispositive facts for a sequentiality claim; as this Court explained in Samms, “[n]othing short of a legislative amendment to Penal Law § 70.04 can transform an out-of-sequence conviction into an employable predicate.” Samms, 95 N.Y.2d at 58. Similarly, in Santiago, the defendant’s date of birth and the date of the purported predicate offense, which were readily discernible from the trial record, and the undisputed fact that the purported predicate was the equivalent of second-degree manslaughter in New York, made clear that the defendant could not have even been prosecuted for such conduct in New York under Penal Law § 30.00, and thus no additional analysis was needed to determine that this conviction could not be used a predicate pursuant to Penal Law § 70.06. Santiago, 22 N.Y.3d at 903-04. Whether an out-of-state conviction constitutes a valid predicate offense pursuant to Penal Law § 70.06 does not fit into this exception. In Smith, this Court expressly held that a defendant’s challenge to the equivalency of a foreign statute to a New York felony is subject to the preservation requirement. 40 We would only add that defendant failed to timely raise the issue of whether he was properly sentenced as a second felony offender by not controverting the allegations in the predicate felony statement (CPL 400.21[3]). Accordingly, any question concerning whether defendant’s prior conviction of kidnapping under 18 USC § 1201 is equivalent to his conviction of a felony in New York has not been preserved for our review. Smith, 73 N.Y.2d at 962-63. This is because, unlike the aforementioned facially illegal sentences, “[d]etermining whether a particular out-of-State conviction is the equivalent of a New York felony may involve 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.” Samms, 95 N.Y.2d at 57. The Santiago court emphasized that this narrow exception is implicated only in circumstances when there is “no need to resort to outside facts, documentation or foreign statutes.” Santiago, 22 N.Y.3d at 903, citing Samms, 95 N.Y.2d at 55-56. Defendant posits that illegal sentence claims such as his should be excepted from the preservation requirement when it is possible to determine their illegality from the trial record. This constitutes a mischaracterization of the exception. Citing Santiago, defendant avers, “Where the violation is discernible from the trial record, no preservation is necessary to raise it on appeal” (defendant’s brief at 14, citing Santiago, 22 N.Y.3d at 900). This is a mischaracterization of the 41 holding and reasoning of that case. In actuality, the Santiago Court explained that the case at issue was similar to Samms, wherein the defendant was sentenced for the predicate conviction after committing the crime which the predicate was being used to enhance even though “the statute plainly requires the opposite chronological sequence,” and, that in Samms, “[i]mportantly, we remarked that in such a circumstance, there was no need to resort to outside facts, documentation or foreign statutes, and thus the record was sufficient for the exception to apply. Likewise here, there was no question as to defendant’s date of birth and the date of his conviction for the Pennsylvania crime,” and, as such, the defendant’s claim fits into the exception to preservation rule. Santiago, 22 N.Y.3d at 903-04. Thus, the Santiago Court did not say that any time a “violation” is “discernible from the record,” it does not have to be preserved, but, instead, made clear that the exception only came into play when undisputed facts on the face of the trial record show that a statute was plainly violated, thus, the sentence was illegal, and, as such, there is no need to resort of outside documents or foreign statutes. Similarly, defendant overlooks this Court’s direct statement in Samms that claims such as defendant’s are different from the types of claims that are excepted from the preservation requirement. The Samms Court explained that unlike “[d]etermining whether a particular out-of-State conviction is the equivalent of a New York felony [which] may involve production and examination of foreign 42 accusatory instruments and, conceivably, the resolution of evidentiary disputes, all in the context of comparisons with the law of other jurisdictions,” and thus is subject to the preservation rule, an undisputed sequentiality issue is not subject to the preservation rule because, the court’s lack of authority “may be determined from the face of the appellate record, which necessarily contains both relevant dates. No resort to outside facts, documentation or foreign statutes is necessary.” Samms, 95 N.Y.2d at 57. The lack of facial illegality distinguishes the determination of whether a foreign conviction can serve as a predicate for sentencing enhancement purposes from the types of claims that this Court has excepted from the preservation rule. Determining whether an out-of-state conviction is the equivalent of a New York felony for sentence enhancement purposes is a lengthy and complex analysis. A step-by-step look at the inquiry demonstrates that it is not the type of error “readily discernible from the trial record” mandated for an exception to the preservation requirement. Even the most straight-forward claims necessarily entail an examination of the foreign statute, which contravenes the notion that the sentence is facially illegal (see Santiago, 22 N.Y.3d at 903; Samms, 95 N.Y.2d at 55-56). Even if the statute is narrow and prohibits only one act that can only be committed in one way, the court must determine its elements, ascertain the closest New York felony, and then 43 evaluate whether the foreign statute contains all of the essential elements of the New York felony. More often, the foreign statute will prohibit more than one behavior, and, as such, after determining the elements of the foreign crime, the court will have to evaluate whether these constitute different “ways” of committing the same crime or separate and distinct criminal acts. If the court determines that the statute only includes different “ways” of committing the same crime, or if an act is only rendered a felony because of an aggravating circumstance such as intent or value, the court cannot look to the accusatory instrument as a means of clarifying the nature of the conviction. It must then find the closest New York felony, and evaluate whether the foreign statute includes all of the essential elements of the New York felony analog, keeping in mind that even “technical distinctions” can preclude the use of a prior felony as a predicate for enhanced sentencing (Matter of North v. Board of Examiners of Sex Offenders of State of New York, 8 N.Y.3d 745, 751 [2007]). It must also be mindful that the acts would all necessarily be felonies in New York, the conviction can be used as a predicate, but if it is possible to violate the foreign statute by behavior that would constitute a misdemeanor in New York, it cannot be used. If the statute contains several acts, some of which would be felonies and some of which would be misdemeanors in New York, the court must go beyond 44 the foreign statute and examine the foreign accusatory instrument. Once again, this involves “the resort to outside facts, documentation or foreign statutes” (Santiago, 22 N.Y.3d at 903, citing Samms, 95 N.Y.2d at 55-56). The court must then examine the foreign accusatory instrument and determine which facts in the accusatory instrument are “operative and material,” and which constitute mere surplusage (those facts that the controversy did not turn upon). Next, it must determine whether the “operative and material” recitals demonstrate that the accusatory instrument charged only an act or acts that would necessarily be felonies in New York, in which case the conviction can be used as a predicate, or whether the accusatory instrument accuses the defendant of acts, some of which would be felonies, but others of which would only support a misdemeanor charge, in which case the conviction cannot be used as a predicate. This analysis is simply not akin to the straight-forward determinations encompassed by the types of cases this Court has recognized as exceptions to the preservation rule. It is a far cry from a determination, for example, that the court exceeded its sentencing power where the sentencing minutes reveal that, as part of the defendant’s sentence, the court directed the defendant to make restitution “in the amount of her defalcation in a manner consistent with that to be set by the probation department,” which violated the clear directive of Penal Law §§ 60.27 45 and 65.10 that the court alone is responsible for setting the amount of restitution (see Fuller, 57 N.Y.2d at 155, 157-58). Defendant states matter-of-factly that “resorting to the accusatory instrument would be improper in this case,” and, as such, the illegality of defendant’s sentence as a predicate felony “may be determined from the face of the record” (defendant’s brief at 15). The fact that the three New York courts that have examined this D.C. statute have all determined that it contains three separate acts, not merely “ways” of committing the same crime, that only some of these acts would be New York felonies, and thus resort to the accusatory instrument was necessary (Jurgins, 34 Misc.3d at *7-10; People v. Jurgins, 107 A.D.3d at 595-96; People v. Clifton, 28 A.D.2d 708, 709 [2d Dept. 1967] [recognizing that the D.C. robbery statute included more than one criminal act, at least one of which, committed in New York, would be a felony and one a misdemeanor]), belies this claim. But more generally, determining whether the Olah exception applies is not a simple endeavor. In fact, in each of the cases mentioned in the briefing of the instant case from this Court that address this issue, this Court has disagreed with and reversed the Appellate Division’s conclusion, often based on the application of the Olah exception and resort to the accusatory instrument. This Court has reversed the Appellate Division based on its determination that the foreign statute contained the essential elements of the New York felony (see Foster, 297 N.Y. at 279-31; 46 Ramos, 19 N.Y.3d at 419-20; People v. Kronick, 308 N.Y. 866, 868 [1955]; Gonzalez, 61 N.Y.2d at 589-90), as well as for finding that the Olah exception did not apply (Jackson, 5 N.Y.2d at 246), and for concluding that the foreign statute contained various “ways” of committing an offense or aggravating circumstances, rather than distinct “acts” (see Muniz, 74 N.Y.2d at 467). The Court has also reversed the Appellate Division’s decision because it improperly resorted to the accusatory instrument (see Yusuf, 19 N.Y.3d at 318; Olah, 300 N.Y. at 102).7 Further, two of the aforementioned cases contain impassioned dissents wherein justices of the Court maintained that the foreign statutes at issue contained several “acts,” thus implicating the Olah exception, and allowing resort to the accusatory instruments, despite the majorities’ conclusions otherwise.8 The frequency of disagreement among appellate courts, and judges on this Court, even just about whether the Olah exception should be applied, highlights the complexity and ambiguity present in determining whether an out-of-state 7 Beyond the cases already mentioned, the Court has also reversed when, even though the courts agreed that the Olah exception applied, the Court disagreed with the Appellate Division’s determination of what documents could be consulted (see Denno, 9 N.Y.2d at 142-43; Yancy, 86 N.Y.2d at 246-47; Gonzalez, 61 N.Y.2d 590-92; People v. Love, 305 N.Y. 722 [1953]). 8 See Denno, 9 N.Y.2d at 143-44 (Froessel, J., dissenting) (arguing that each act pleaded was a separate and distinct crime, and thus the case was not controlled by Olah, and the defendant only pleaded guilty to one act, which would be a felony in New York); Muniz, 74 N.Y.2d at 471-74 (Bellacosa, J., dissenting) (arguing that the statute proscribed several acts, some of which would be felonies and some of which would be misdemeanors in New York, and resort to the accusatory instrument was proper and demonstrated that the defendant was unquestionably convicted of the equivalent of a New York felony). 47 conviction can serve as a valid predicate for sentencing enhancement. Unlike the claim in Samms, where the lack of sentencing authority was “manifest” when the predicate felony statement was considered along with the date of the crimes at issue, here, there is no dispositive fact or facts in the equivalency analysis that would make clear that the court had acted beyond its sentencing authority and obviate the need to engage this analysis, which necessarily involves a foreign statute. As such, this type of claim must be preserved. Because defendant failed to preserve the instant claim, it does not constitute a question of law that this Court can review. The case at hand epitomizes why this type of claim must be preserved. As explained, supra, there was no dispositive date or fact involved that made clear the sentence was illegal. Instead, the court had to engage the complex analysis discussed, supra, including interpreting a foreign statute to determine whether it contained only different “ways” of committing a robbery or separate and distinct acts, an issue on which the parties strongly disagreed. Although defendant now asserts that the court “need not employ any analysis beyond an essential elements comparison” (see defendant’s brief at 10-13, 18), his own extended discussion of D.C. case law (see A44-46, A146-48, A164) further undermines his claim. After determining that the statute contained several distinct and separate acts, the court had to determine whether the acts were the equivalent of New York felonies or 48 misdemeanors, which involved comparison to several New York statutes. Because it determined the statute contained both, it had to examine the foreign accusatory instrument to discern which acts defendant had pleaded guilty to. It determined that he had pleaded guilty to the first and third acts, which both constituted New York felonies, and thus found that the conviction was properly used as a predicate. Jurgins, 34 Misc.3d at *7-10. Any supposed lack of sentencing authority was far from “manifest” here. Even discarding the Court’s clear precedent on the narrow preservation rule exception and adopting, arguendo, defendant’s proffered rule, his instant claim would be procedurally barred because “it cannot be determined from the record that the predicate is, in fact, unauthorized” (see defendant’s brief at 16). As discussed, infra, Point IIB, if a defendant cannot create a preserved issue by belatedly raising it in a CPL § 440.20 motion, the record must be examined as it was at the time of sentencing, meaning that it would not include documents that were introduced as part of, or in response to, a subsequent CPL § 440.20 motion. The only documents relating to his D.C. conviction that were part of the record before defendant was sentenced were the Second Felony Information and the certificate of disposition (A20, A22). Neither the D.C. statute nor the D.C. Information were in the trial record, but instead only entered the record over a year after defendant’s sentencing upon his CPL § 440.20 motion (see A45, A130). 49 Every determination of whether a foreign conviction can be considered the equivalent of a New York felony requires the court to examine the foreign statute (see supra), and that statute was not part of the trial record. Further, the three New York courts that have examined this statute have determined that it contains three separate acts, some of which would be New York felonies and some misdemeanors, and, thus, resort to the foreign accusatory instrument was necessary to determine the specific act or acts to which defendant pleaded guilty (see supra). The first time the D.C. Information appears is in the People’s October 17, 2011 response to defendant’s CPL § 440.20 motion, wherein it bears a stamp reading “A TRUE COPY TEST: OCT-4-2011 Clerk, Superior Court of the District of Columbia” (see A130). Because defendant’s sentence took place on July 2, 2010, the D.C. Information could not have been part of the trial record at that point. Thus, since neither the D.C. statute nor the D.C. Information were included in the trial record, it would not have been possible to determine the predicate’s supposed invalidity, and, thus, the sentence’s purported illegality, from the trial record. B. Defendant Waived His Claim that His Prior Conviction Is Not the Equivalent of a New York Felony Because He Did Not Raise It During the Predicate Felony Adjudication. In order to preserve a challenge to the validity of an out-of-state predicate, the defendant must raise it during the predicate felony adjudication. When he fails 50 to do so, he waives that claim. This Court has made clear that a failure “to timely raise the issue of whether he was properly sentenced as a second felony offender by not controverting the allegations in the predicate felony statement” renders any claim that a defendant’s prior out-of-state conviction was not the equivalent of a New York felony unpreserved. Smith, 73 N.Y.2d at 962-63. In reaching this determination, the Smith Court cited CPL § 400.21(3), which states that the defendant must be given a copy of the predicate felony statement filed by the People, and the court must provide the defendant an opportunity to controvert any allegation made therein; “If the defendant wishes to controvert any allegation in the statement, he must specify the particular allegation or allegations he wishes to controvert. Uncontroverted allegations in the statement shall be deemed to have been admitted by the defendant.” CPL § 400.21(3). Where the uncontroverted allegations in the statement are sufficient to support a finding that the defendant has been subjected to a predicate felony conviction, the court must enter such a finding and sentence the defendant in accordance with Penal Law § 70.06. CPL § 400.21(4). “Where a finding has been entered pursuant to this section, such finding shall be binding upon that defendant in any future proceeding in which the issue may arise.” CPL § 400.21(8). CPL § 400.21 “govern[s] the procedures that must be followed in any case where it appears that a defendant who stands convicted of a felony has previously 51 been convicted of a felony and may be a second felony offender as defined in section 70.06 of the penal law” (CPL § 400.21). People v. Harris, 61 N.Y.2d 9, 15 (1983) (same). The procedure is “quite explicit” and in the 40 years since CPL § 400.21 has been on the books, “it has not been the subject of any judicial ruling that requires departure from reliance upon literal interpretation.” Peter Preiser, Practice Commentaries, CPL § 400.21. Thus, the language and implication of the statute are clear: if a defendant does not controvert the allegations in the predicate felony statement, they are deemed admitted and are binding on him in all future proceedings. Smith made clear that the allegations that must be controverted pursuant to subsection (3) include the propriety of his being sentenced as a second felony offender, and specifically that his prior out-of-state conviction is the equivalent of a New York felony. Smith, 73 N.Y.2d at 962-63. In addition, this Court has held that a defendant can waive his rights to receive a predicate felony statement and to controvert its allegations. See People v. Ross, 7 N.Y.3d 905, 906 (2006) (where the People failed to submit a predicate felony statement and the defendant waived receipt of it, and, upon questioning by the judge, the defendant declined to contest his predicate felonies, because the information before the sentencing court established that the he had been convicted of a known and identified felony within the time required by the statute, his waiver of his rights to receive a predicate felony statement and to controvert its allegations 52 was valid). In People v. Morse, 62 N.Y.2d 205 (1984), three of the defendants challenged their predicate felony adjudications because their predicate convictions antedated the effective date of the statute classifying the crime on which the conviction was based as a violent felony offense. Morse, 62 N.Y.2d at 214-16. In stating that this claim was not subject to the preservation requirement, and thus could be challenged for the first time on appeal, the Court took care to explain that “they have not controverted the allegations of the predicate or persistent felony information, which would require timely objection (CPL 400.15, subd 3; 400.16, subd 2).” Id. at 214 n 2. This Court has also relied on CPL § 400.21(3) in holding that a defendant who was being resentenced pursuant to the Drug Law Reform Act could not for the first time at resentencing claim that the prior conviction used to designate him a second felony offender at the original proceeding was not the equivalent of a New York felony because he was required to controvert the People’s predicate statement to that effect at the original proceeding, but had failed to do so. People v. Dais, 19 N.Y.3d 335, 346 (2012). Thus, a failure to controvert the equivalency of a prior out-of-state conviction during the predicate felony adjudication constitutes a waiver of this right. See People v. Sailor, 65 N.Y.2d 224, 235 (1985) (“Similarly, under the second felony offender law, the defendant must specify the particular allegations that he wishes to controvert in the predicate felony statement. Unless he does so, the allegations are deemed admitted (CPL 53 400.21[3]) and may serve as the basis for imposition of a second felony offender sentence without a full hearing (see, CPL 400.21 [4]).”). All departments within the Appellate Division have held that defendants can waive such a challenge.9 Further, this Court has even left open the possibility that a defendant can expressly waive any objection to an unauthorized sentence. See Samms, 95 N.Y.2d at 55 (leaving open the question of whether a defendant’s express waiver to his right to be sentenced in accordance with the statutory requirement that the sentence for the conviction serving as his predicate offense must have been imposed before commission of the present felony would be enforceable). Here, because defendant failed to challenge the validity of his D.C. conviction at the predicate felony adjudication, he waived that claim. During the plea proceeding, the People submitted a second felony information and requested defendant be adjudicated a second felony offender based on his conviction for Attempt to Commit Robbery. Defendant did not object; instead, he acknowledged that he had been convicted of this offense and had been sentenced to 14 to 42 months of incarceration (A20-21). In addition, defendant acknowledged that he 9 See, e.g. People v. Rodriguez, 276 A.D.2d 379 (1st Dept.2000); People v. Nadal, 240 A.D.2d 595, 596 (2d Dept. 1997); People v. Crippa, 245 A.D.2d 811, 812 (3d Dept. 1977); People ex rel. Ryan v. Smith, 50 A.D.2d 1078 (4th Dept. 1975). 54 had multiple convictions that would be felonies if committed in New York (A15- 16). As such, defendant waived this claim. Defendant takes issue with the Appellate Division’s holding in Kelly wherein it found that the defendant, who had pled guilty, but did not raise the issue of whether his prior out-of-state conviction was the equivalent of a New York felony during the predicate felony adjudication, had waived that claim. Kelly, 65 A.D.3d at 887. This decision is grounded in meaningful policy justification Justice McGuire, in his concurring opinion in Kelly, thoroughly explained the policy considerations underlying the court’s determination. The same principles supporting CPL § 470.05(2)’s contemporaneous-objection rule support the requirement that defendants raise challenges at the time of the predicate felony adjudication: promoting finality, preserving judicial resources, and preventing gamesmanship. Kelly, 65 A.D.3d at 892 (McGuire, J., concurring). This is especially true in the case of a plea bargain; a bargain is meant to signify the end, rather than the beginning of a criminal case. Kelly, 65 A.D.3d at 892 (McGuire, J., concurring). There are no time limitations on a defendant’s ability to raise a CPL § 440.20 claim, allowing defendants to wait until months or years after sentencing to raise a challenge to the predicate felony adjudication. A defendant, like Kelly, or defendant here, has “powerful incentives” not to challenge the predicate felony statement; if defendant here had, he would have lost the favorable plea offer and 55 faced trial after which he likely would have been convicted given the overwhelming evidence against him, and, subsequently, adjudication as a persistent felony offender and a possible life sentence (see, supra at 30-32; A7, A160). Given these circumstances, “it makes no sense to permit defendant to wait more than six months after sentencing to raise for the first time these challenges to his adjudication as a second violent felony offender.” Kelly, 65 A.D.3d at 892 (McGuire, J., concurring). Such a delay prejudices the People in the context of a guilty plea in that the more time that passes, the more difficult prosecution becomes. Kelly, 65 A.D.3d at 892-93 (McGuire, J., concurring). Unlike before a sentence is imposed when a defendant pleads guilty to a lesser included offense or less than the entire indictment, wherein the People can withdraw their consent to a plea agreement (Farrar, 52 N.Y.2d at 307]), if after a guilty plea and sentence a defendant successfully challenges his predicate felony offense, the People are not permitted to withdraw their consent to defendant’s guilty plea. People v. Marrero, 3 N.Y.3d 762, 763 (2004). Thus, allowing a defendant to bring this challenge after being sentenced following a guilty plea allows him to have his cake and eat it, too; he could plead guilty to less than the full indictment or the top count of the indictment pursuant to an agreement wherein he agrees that he is a second felony offender, and then after sentencing, challenge his predicate felony adjudication via a CPL § 440.20 motion 56 and be resentenced as a first offender to the offense to which he pled guilty. The Kelly rationale is based in fairness: hindering defendants who already had and chose not to exercise opportunities to object to their predicate felony adjudication from launching belated and disruptive challenges in the “thirteenth hour.” This circumstance also demonstrates that a CPL § 440.20 motion should not be considered to be a trial level protest at a time when the court has an opportunity of effectively changing the same, pursuant to CPL § 470.02. The court is not technically in a position where it can remedy the issue—as stated, the defendant’s plea will remain intact, meaning that he will be allowed to retain the benefit of pleading to less than the entire indictment. Further, the Smith court’s express reliance on CPL § 400.21(3) in finding that the defendant had failed to timely raise the issue undermines defendant’s claim that there is “no reason to assume” that the trial court level must be read as meaning the plea proceeding only (see defendant’s brief at 20). That decision did not suggest that a CPL § 440.20 motion would have preserved the issue; instead, its reliance on CPL § 400.21 makes clear that a defendant’s challenge to the propriety of his adjudication as a second felony offender must be raised at the predicate felony adjudication in order to preserve it for appellate review. Defendant attempts to demonstrate that Kelly is atypical and that lower courts routinely review out-of-state predicate challenges raised for the first time in 57 CPL § 440.20 motions. In actuality, Kelly has been cited by other departments,10 and, as explained, supra, at 54 n 9, all four departments have reached the same conclusion. The cases upon which defendant relies are all distinguishable from the case at hand. Defendant cites three cases for the proposition that after Samms, courts continued to review out-of-state predicate challenges raised for first time in CPL § 440.20 motions, and that the Appellate Division, First Department has evaluated the merits in such cases without suggesting that any procedural bar existed to the motion (see defendant’s brief at 20-21). These cases are distinguishable because there is no indication that the People raised any waiver or preservation issues or that the courts ever considered that issue. See Bennett, 60 A.D.3d at 478; Cardona, 9 A.D. 3d at, 338; Perron, 273 A.D. 2d at 549. The First Department highlighted this distinction in Kelly, explaining that Bennett, “had no bearing on this case” because the People did not argue waiver and conceded that the defendant had been improperly sentenced. Kelly, 65 A.D. 3d at 887 n 1. Moreover, the issue on appeal 10 Other Departments have cited Kelly in the out-of-state predicate felony offender context. In People v. Haynes, 70 A.D.3d 718 (2d Dept. 2010), lv denied, 15 N.Y.3d 751 (2010), the Second Department cited Kelly in rejecting the defendant’s claim that his adjudication as a persistent violent felony offender was invalid where the predicate statement filed by the People failed to set forth any tolling periods and the conviction was more than ten years-old, because his appeal waiver precluded him from challenging the legality of the persistent violent felony offender adjudication procedure. Haynes, 70 A.D.3d at 718-19. The Third Department cited Kelly for the proposition that a defendant’s predicate violent felony adjudication claim was unpreserved given his failure to raise it before County Court. People v. Evans, 88 A.D.3d 1029, 1030 (3d Dept. 2011) lv denied, 18 N.Y.3d 858, 962 N.E.2d 291 (2011). 58 in Bennett was the resentencing court’s denial of the defendant’s motion to withdraw his plea, which the Appellate Division held should have been granted because his plea was not knowing, voluntary and intelligent, and, accordingly, vacated his plea and reinstated the full indictment. Bennett, 60 A.D.3d 478 at 478- 79. In Cardona, the defendant was adjudicated a persistent violent felon after a hearing wherein he may have preserved the issue. Cardona, 9 A.D. 3d at 338. Perron is also distinguishable from the case at hand in that the defendant also raised a CPL § 440.10 claim, which the court found had merit because the defendant’s trial counsel admitted that she had failed to investigate this issue and never contested his status as a prior felony offender; that case also involved a conviction after a trial rather than a guilty plea. Perron, 273 A.D. 2d at 550. In addition, there is no indicate that the People raised a preservation issue in People v. Scarver, 302 A.D.2d 243 (1st Dept. 2003), or in People v. West, 58 A.D.3d 483 (1st Dept. 2009), especially considering that the court addressed the issue of preservation with regard to Scarver’s double jeopardy claim (Scarver, 302 A.D.2d at 243) and West’s illegal search claim (West, 58 A.D.3d at 483). Further, both of the defendants were convicted after jury trials, rather than guilty pleas. Again, in People v. Booker, 301 A.D.2d 477 (1st Dept. 2003), the People did not appear to raise a preservation issue, and, the defendant there also moved to vacate his judgment. 301 A.D.2d at 477. 59 Defendant relies on several cases for the proposition that “the other departments all acknowledge the propriety of using CPL § 440.20 as a vehicle for challenging out-of-state predicates” (see defendant’s brief at 22 n 9). These cases are readily distinguishable, and other cases from each department demonstrate that those courts are in line with Kelly. In People v. Adams, 164 A.D.2d 546, 551-52 (2d Dept. 1991), decided 9 years before Samms, the court held a hearing pursuant to CPL § 400.21(5) after the defendant was convicted after a bench trial. Adams, 164 A.D.2d at 548, 550. The Second Department has recently found that a defendant’s claim that his out-of-state conviction was not the equivalent of a New York felony was unpreserved because it was not raised before sentencing (People v. Sanford, 162 A.D.2d 560, 561 [2d Dept. 1990]); because CPL § 440.20 motions must be raised after the imposition of sentence (CPL § 440.20[1]), this necessarily means that such a motion could not have preserved the issue. Moreover, in People v. Stinson, 151 A.D. 2d 842 (3d Dept. 1989), the defendant, at the predicate felony adjudication, argued that his prior conviction did not rise to the level of a felony in New York; only after the trial court rejected this argument did he file at CPL § 440.20 motion. Stinson, 151 A.D. 2d at 842. Further, the Third Department has consistently held that a defendant must raise a claim that his out-of-state conviction was not a New York felony equivalent at the time of the predicate felony adjudication or the issue is waived and unpreserved. See, e.g. People v. Barton, 60 200 A.D.2d 888 (3d Dept. 1994) (reversing, on the People’s appeal, the trial court’s grant of the defendant’s CPL § 440.20 motion based on his contention that his out-of-state conviction did not qualify as a predicate felony under New York law, because, at the time of sentencing, the defendant failed to controvert the predicate felony statement or request a hearing, and this constituted a waiver of his right to challenge the conviction and its validity); People v. Parker, 121 A.D.3d 1190 (3d Dept. 2014), citing Samms, 95 N.Y.2d at 57 and Smith, 73 N.Y.2d at 962- 63 (agreeing with the People’s assertion that the defendant failed to preserve his claim that his Florida conviction was not the equivalent of a New York felony by objecting or otherwise challenging the Florida conviction at sentencing). Finally, defendant mischaracterizes the Fourth Department’s holding in People v. Logan, 2 A.D. 3d 1392 (4th Dept. 2003) (defendant’s brief at 22 n 9). In Logan, the court stated that the defendant’s ineffective assistance of counsel claim involved matters outside the record and must be raised in a CPL § 440 motion. It separately addressed whether the defendant’s Virginia conviction was the equivalent of a New York felony, stating, “The record does not specify the Virginia statute under which defendant was convicted, and thus we cannot determine whether there is a comparable statute in New York.” Logan, 2 A.D. 3d at 1392. Thus, the court did not state that the challenge must be brought in a CPL § 440 motion. The Fourth Department has held that a defendant must raise this claim during the predicate 61 felony adjudication in order to preserve it. See People v. Anderson, 35 A.D.3d 1209, 1210 (4th Dept. 2006), citing Smith, 73 N.Y.2d at 961 (finding that because the defendant failed at the time of sentencing to controvert the allegations in the second felony offender statement filed by the People pursuant to CPL § 400.21, he failed to preserve his contention that he was improperly sentenced as a second felony, and rejecting the defendant’s claim that the narrow exception to the preservation rule does applied); People v. Anderson, 48 A.D.3d 1065, 1066 (4th Dept. 2008), citing CPL § 400.21(3) and Smith, 73 N.Y.2d at 962-63 (finding that the defendant failed to controvert the allegations in the second felony offender statement and thus failed to preserve his contention that Supreme Court erred in sentencing him as a second felony offender). Moreover, defendants who have waived this claim are not completely estopped from raising it: the Appellate Division can always review a defendant’s claim under its interest of justice jurisdiction.11 Further, here even though they found the claim unpreserved and waived, both the nisi prius court and the Appellate Division evaluated the merits of defendant’s claim (Jurgins, 107 A.D.3d at 595-96; Jurgins, 34 Misc.3d at *4-9). As such, fairness militates in favor of the Kelly holding. 11 See, e.g. People v. Fletcher, 98 A.D.3d 899 (1st Dept. 2012); People v. Ostin, 62 A.D.2d 1004 (2d Dept. 1978); People v. Parker, 121 A.D.3d 1190 (3d Dept. 2014); People v. Williams, 49 A.D.3d 1183, 1184 (4th Dept. 2008). 62 The legislature did not intend to permit the kind of gamesmanship defendant’s proposed rule would allow. Defendant quotes a portion of Mr. Preiser’s Practice Commentaries to CPL § 440.20 to support his claim that such motions are the 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’” (defendant’s brief at 20). Nothing in this commentary, however, implies that the defendant did not raise this claim at the time of the predicate felony adjudication. In fact, reading in the absence of a timely contravention, as defendant has done, puts the author at loggerheads with himself. In the Practice Commentaries to CPL § 400.21, Mr. Preiser states: Here it is important to remember that this examination is the only stage at which the defendant has the opportunity to controvert any of the allegations in the statement. As the statute recites, and as the remainder of the procedure indicates, uncontroverted allegations are deemed admitted and the defendant will receive no hearing regarding them. Indeed, if the proceeding results in a finding adverse to the defendant, the defendant will be bound by that finding -- including any necessarily incorporated facts the defendant failed to controvert -- for all time in any future recidivist proceeding (subd. 8). Peter Preiser, Practice Commentaries, CPL § 400.21, citing Smith, 73 N.Y.2d at 961. This understanding is consonant with the history of CPL § 400.21 and the legislative intent to thwart gamesmanship in this process. Its predecessor, Penal Law § 1943, provided that the People could file an information accusing a 63 defendant of having been previously convicted of a felony “at any time, either after sentence or conviction.” Penal Law § 1943 (added L. 1926 ch 457. Former § 1943 renumbered § 2641 by L. 1909 ch. 542). The only challenge a defendant could raise was that he was not the person charged in the information. At that time, defendants had no means of attacking the constitutionality of a prior conviction except in the court in which it was rendered, meaning that they had no avenue to challenge out-of-state convictions used as predicates in New York. People v. McCullough, 300 N.Y. 107 (1949); People v. Wilson, 13 N.Y.2d 277 (1963). In 1964, the legislature added a provision to Penal Law § 1943 stating that a previous conviction that was unconstitutionally obtained could not be used as a predicate offense, and that a defendant could so challenge the predicate “at this time,” but that “[t]he failure of the person accused to challenge the previous conviction in the manner provided herein shall constitute a waiver on his part of any allegation of unconstitutionality unless good cause be shown for his failure to make timely challenge.” Penal Law, § 1943, as amd. by L.1964, ch. 446. The Attorney General filed a memorandum explaining the amendment’s purpose, stating, in pertinent part, As a result of that decision,12 the Attorney General, as the legal representative of the Wardens of our various penal 12 U.S. ex rel LaNear v. LaVallee, 306 F. 2d 417 (2d Cir. 1962) (holding that New York prisoners may resort to a collateral attack by means of habeas corpus in the federal courts due to a lack of state remedy). 64 institutions, is now required to litigate the question of the validity of out-of-state convictions, many of which were had years ago. The difficulty and expense of such litigation is great. The bill would overcome the problem, in part at least, by giving those accused of prior felony convictions the right to attack the validity of those convictions at the time they become so accused. The District Attorney who files the information alleging the prior convictions would defend its contents and could do so more easily and inexpensively because the records would then be more readily available. In many jurisdictions, records of judicial proceedings are destroyed after the lapse of a specified period of time. It is the practice of many inmates of our state prisons to initiate an attack upon their prior convictions once they have determined that they may do so with impunity. This bill would discourage, if not eliminate, that practice.” Attorney-General’s Memorandum, N.Y. Legis. Ann., 1964, p. 57 (emphasis supplied). Thus, in response to the gamesmanship defendants were exhibiting and to allow the People a chance to adequately defendant the predicate felony information, the legislature mandated that defendants must raise challenges to out- of-state predicates at the time they are accused, i.e. during the predicate felony adjudication. In 1973, CPL § 400.21 was created (L.1973, c. 277, § 17). Keeping with its predecessor’s emphasis on fairness and conservation of resources, CPL § 400.21 added subsection (3), identical to the current statute, which specifies that if defendant wants to controvert any allegation in the statement, he must specify the particular allegations he wishes to controvert, and any uncontroverted allegations 65 in the statement shall be deemed to have been admitted. CPL § 400.21(3) (1973). Further, the statute also added a provision that “where the uncontroverted allegations in the statement are sufficient to support a finding that the defendant has been subjected to a predicate felony conviction the court must enter such finding” (CPL § 400.21[4] [1973]), and such a finding became binding in any future proceeding (CPL § 400.21[8] [1973]). Thus, in addition to constitutional challenges, the statute granted defendants an opportunity to challenge any allegation in the information, but, like constitutional challenges, provided that they must do so during the predicate felony adjudication or they are deemed admitted, and mandated that the court adjudicate the defendant a predicate felony offender at that point. Notably, although the legislature included a provision that a defendant could later raise a constitutional claim if he demonstrated good cause for failing to do so at the time of the predicate felony adjudication (see CPL § 400.21[7][b]), no such provision was included regarding subsection (3). These amendments demonstrate a theme of allowing defendants more ways to challenge their predicate offenses, but imposing stricter limits on when they can do so. Thus, the legislature’s clear intent was to limit any challenges to the validity of the predicate offense to the predicate felony adjudication. Such intent is not consistent with an intention to allow defendants an unlimited timeframe to challenge the equivalency of their predicate offense to a New York felony. 66 The instant case underscores the gamesmanship and unfairness that allowing this claim to be raised in a CPL § 440.20 motion allows. Here, defendant was aware of his ability to raise this challenge at the predicate felony adjudication and chose not to do so. This claim fits into the category of claims that could have been raised, and easily remedied, at the appropriate time. Defendant made a strategic decision not to object to the use of his D.C. conviction as a predicate in order to obtain the favorable plea offer. His counsel was aware of the possibility of challenging the predicate offense, evidenced both by her affirmation in support of defendant’s CPL § 440.20 motion (see A113), and also the court’s statement at the plea proceeding that it had discussed defendant’s numerous prior felony convictions with defense counsel, both on and off the record (A15). Moreover, that defendant also failed to challenge the use of his D.C. conviction in his June 14, 2010 motion to withdraw his guilty plea (A93-99), in his July 2010 CPL §440.20 motion (see A38 n 1, A56-63), or at sentencing, casts doubt on the sincerity of his claim that he did not knowingly waive this claim. 67 CONCLUSION DEFENDANT'S SENTENCE SHOULD NOT BE MODIFIED. JOSEPH N. FERDENZI STANLEY R. KAPLAN CATHERINE M. RENO Assistant District Attorneys Of Counsel February 4, 2015 68 Respectfully Submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent