The People, Respondent,v.Mark Jurgins, Appellant.BriefN.Y.October 22, 2015APL-2014-00183 To be argued by LISA A. PACKARD (15 Minutes requested) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - MARK JURGINS, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street - 28th Floor New York, NY 10005 (212) 577-2523 LISA PACKARD Of Counsel March 31, 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . REPLY BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY POINT I MARK JURGINS’S FOREIGN PREDICATE, WHICH VIOLATES THE STRICT EQUIVALENCY TEST, IS PROPERLY REVIEWABLE AS A QUESTION OF LAW OR BY VIRTUE OF HIS C.P.L. § 440.20 POST-JUDGMENT CHALLENGE (Replying to RB. at POINTS (I) (A) and (II)) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. The Facial Invalidity of Mark Jurgins’s Foreign Predicate Under the Strict Equivalency Test Requires Vacatur of His Unlawful Sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Preservation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. The D.C. Predicate is Unlawful. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Mark Jurgins Properly Challenged His Unlawful Predicate in a Post-Judgment Motion Under C.P.L. § 440.20... . . . . . . . . . . . . . . . . . 10 REPLY POINT II COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO CHALLENGE THE FOREIGN PREDICATE FELONY OFFENSE. (Replying to RB. at POINT (1)(B)).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 CONCLUSION BECAUSE MARK JURGINS’S FOREIGN PREDICATE VIOLATES THE STRICT EQUIVALENCY TEST HIS SENTENCE MUST BE VACATED AND RE-SENTENCING ORDERED BY THIS COURT... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 i PRINTING SPECIFICATIONS STATEMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . 18 ii TABLE OF AUTHORITIES CASES Mask v. Ginnis, 28 F. Supp. 2d 122 (S.D.N.Y. 1998). . . . . . . . . . . . . . . . . . . . . . . . . 16 Matter of North v. Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Ahmed, 66 N.Y.2d 307 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. Covington, 177 A.D.2d 1055 (4th Dep’t 1991). . . . . . . . . . . . . . . . . . . . . . . 6 People v. Dais, 19 N.Y.3d 335 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 People v. Fuller, 57 N.Y.2d 152 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 14 People v. Garcia, 19 A.D.3d 17 (1st Dep’t 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Gillespie, 35 A.D.3d 880 (2d Dep’t 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Gonzalez, 61 N.Y.2d 586 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6 People v. Lopez, 16 N.Y.3d 375 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Loughlin, 66 N.Y.2d 633 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 People v. Muniz, 74 N.Y.2d 464 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. Olah, 300 N.Y. 96 (1949). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v. O’Rama, 78 N.Y.2d 270 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Ramos, 19 N.Y.3d 417 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Samms, 95 N.Y.2d 52 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11, 12 People v. Santiago, 22 N.Y.3d 900 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 iii People v. Silva, 24 N.Y.3d 294 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Smith, 73 N.Y.2d 961 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11 People v. Thompson, 11 A.D.3d 395 (1st Dep’t 2004).. . . . . . . . . . . . . . . . . . . . . . . . 6 People v. Yusuf, 19 N.Y.3d 314 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7 STATUTES C.P.L. § 400.21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C.P.L. § 400.21(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 C.P.L. § 400.21(7)(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 C.P.L. § 400.21(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 15 C.P.L. § 440.20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim C.P.L. § 470.35(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 N.Y. Penal Law § 155.05(2)(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 N.Y. Penal Law § 155.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 N.Y. Penal Law § 155.25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 N.Y. Penal Law § 160.00. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 OTHER REFERENCES McKinney’s Cons Laws of NY, Book 1, Statutes § 74. . . . . . . . . . . . . . . . . . . . . . . . 13 McKinney’s Cons Laws of NY, Book 1, Statutes § 240. . . . . . . . . . . . . . . . . . . . . . . 14 McKinney’s Cons Laws of NY, Book 1, Statutes § 251. . . . . . . . . . . . . . . . . . . . . . . . 9 iv McKinney’s Cons Laws of NY, Book 1, Statutes § 253. . . . . . . . . . . . . . . . . . . . . . . . 9 McKinney’s Cons Laws of NY, Book 1, Statutes § 259. . . . . . . . . . . . . . . . . . . . . . . . 9 McKinney’s Cons Laws of NY, Book 1, Statutes § 261. . . . . . . . . . . . . . . . . . . . . . 6, 8 v COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : -against- : MARK JURGINS, : Defendant-Appellant. : ---------------------------------------------------------------------X REPLY BRIEF Appellant Mark Jurgins submits this brief in reply to Respondent’s Brief (“RB”). Reply Point I counters respondent’s challenge to this Court’s authority to review the illegality of Mr. Jurgins’s unlawful predicate status and its claim that Mr. Jurgins’s foreign predicate is not actually unlawful. Reply Point II addresses respondent’s assertion that counsel rendered effective assistance notwithstanding her sworn statement that she would have challenged the foreign predicate had she known there were grounds to do so. 1 REPLY POINT I MARK JURGINS’S FOREIGN PREDICATE, WHICH VIOLATES THE STRICT EQUIVALENCY TEST, IS PROPERLY REVIEWABLE AS A QUESTION OF LAW OR BY VIRTUE OF HIS C.P.L. § 440.20 POST- JUDGMENT CHALLENGE. (Replying to RB. at POINTS ONE & TWO.) The only basis for precluding a defendant from challenging his illegal sentence for the first time on appeal is where the record fails to reveal that the sentence is, in fact, illegal. Otherwise, a defendant has “the right to be sentenced as provided by law,” with the rules of preservation yielding to this right, both before the Appellate Division and this Court. People v. Fuller, 57 N.Y.2d 152, 156 (1982) (“[I]t has long been the law that the ‘essential nature’ of the right to be sentenced as provided by law, though not formally raised at the trial level, preserves a departure therefrom.”); Appellant’s Brief at 14-19. 1 Respondent maintains that foreign predicate challenges must be disputed at the time of defendant’s sentencing, but respondent has not provided any support for the blanket application of a rule that would irrevocably subject individuals to facially Respondent wrongly asserts that Mr. Jurgins is barred from arguing that his claim is exempt1 from preservation rules because he failed to make that argument before the Appellate Division. RB. at 38. Under C.P.L. § 470.35(1), this Court has the jurisdiction to review “not only questions of law which were raised or considered upon the appeal to the intermediate appellate court, but also any question of law involving alleged error or defect in the criminal court proceedings resulting in the original criminal court judgment, sentence or order, regardless of whether such question was raised, considered or determined upon the appeal to the intermediate appellate court.” (emphasis added). 2 invalid sentences like the one imposed here. Accordingly, this Court must vacate Mr. Jurgins’s sentence and remand for resentencing. See Subsection A., post. Regardless, Mark Jurgins properly challenged his predicate in a post-judgment motion under C.P.L. § 440.20, the denial of which is now properly before this Court on appeal from the Appellate Division. See Subsection B., post. A. The Facial Invalidity of Mark Jurgins’s Foreign Predicate Under the Strict Equivalency Test Requires Vacatur of His Unlawful Sentence. 1. Preservation Illegal sentences are exempt from the rule of preservation, and respondent has failed to identify a valid basis for treating a sentence improperly enhanced by an unlawful foreign predicate otherwise. Setting aside foreign predicates for which consultation of outside documents is necessary (the exception to the Olah rule,2 addressed at p. 7, post), any difficulties associated with strict equivalency analysis: (1) bear no relationship to, and in any event are not cured by, applying the rule of preservation; and (2) are hardly the problem respondent suggests. Respondent asserts that preservation is necessary because “determining whether an out-of-state conviction is the equivalent of a New York felony . . . is a lengthy and complex analysis,” and “not the type of error ‘readily discernable from the trial record.’” Resp. Br. at 43. These assertions are baseless. 300 N.Y. 96 (1949). 2 3 First, the invalidity of the foreign predicate here is discernable from the trial record, and respondent wrongly distinguishes this case from People v. Samms and3 other cases involving facially invalid sentences in claiming that “there was no dispositive date or fact involved that made clear that the sentence was illegal.” RB. at 48. The only information necessary to perform the strict equivalency test is the foreign statute itself, a “record” fact that is “readily discernable” from the prosecution’s predicate felony statement. See People v. Yusuf, 19 N.Y.3d 314, 321 (2012) (“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.”). And this Court’s decision in People v. Santiago is dispositive of respondent’s claim that People v. Smith created a blanket rule of preservation for4 foreign predicates. RB. at 40. See Santiago, 22 N.Y.3d 900, 903 (2013) (holding that the defendant’s Pennsylvania predicate fell “within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernable from the trial record”). Respondent’s insistence that the preservation rule be applied to foreign predicate challenges essentially comes down to the “complex analysis” an appellate court might have to conduct to perform the strict equivalency test. See RB at 43-49. 95 N.Y.2d 52 (2000). 3 73 N.Y.2d 961 (1989).4 4 That a foreign predicate challenge requires an appellate court to engage in “analysis,” however, in no way explains the need for preservation. A comparison of two statutes may in some instances require a “lengthy” or “complex” analysis, but the complexity of a legal question does not dictate whether the legal question requires preservation in the first place.5 Similarly, that a reviewing court may need to call upon foreign case law to interpret the foreign statute fails to justify imposing a preservation requirement. See RB. at 48 (arguing that defendant’s reliance on D.C. case law constitutes analysis beyond the strict equivalency test). A foreign jurisdiction’s interpretations of its penal statutes are no less apparent from the face of the record than our State courts’ interpretations of its own statutes. Contrary to respondent’s assertion that this Court’s reliance on foreign case law in People v. Ramos was an outlier, RB. at 22,6 this court also called upon Florida case law to interpret the statutes at issue in People Indeed, respondent’s logic is belied by the numerous questions that come before this Court5 as mode of proceedings errors, but which nevertheless require, at times, a complicated analysis. For example, the rules surrounding “indelible right to counsel” issues are often contested and complex, but they are nevertheless reviewed without regard to preservation. See, e.g., People v. Lopez, 16 N.Y.3d 375, 384 (2011) (discussing the evolution of the rule and whether the “right to counsel jurisprudence is too complicated”). The same can be said of O’Rama error. See People v. Silva, 24 N.Y.3d 294 (2014) (discussing and disputing the rules of People v. O’Rama, 78 N.Y.2d 270 (1991), and its progeny). 19 N.Y.3d 417 (2012). 6 5 v. Gonzalez, even though access to foreign case law was undoubtedly more difficult7 when that case was decided given the absence of web-based research tools. And, as8 is relevant to the underlying merits of Mr. Jurgins’s claim (addressed at (A)(2), post), the Legislature not only permits reliance on the foreign courts’ construction of its own statutes, it explicitly directs it. See McKinney’s Cons Laws of NY, Book 1, Statutes § 261 (“Where courts of New York find it necessary to construe the statutes of another state, they are bound to follow the construction which the courts of the other state have placed upon its laws.”). This Court has ruled time and again that unlawful sentences are exempt from preservation, and respondent has provided no sound reason for excluding facially invalid foreign predicates from that longstanding rule. In any event, respondent overstates the test’s complexity, drawing support from examples that undercut that very claim. For example, respondent notes that “in each of th[is] [Court’s] cases mentioned in the briefing,” this Court has reversed the conclusion of the Appellate Division. RB. at 46. If anything, these reversals highlight the Appellate Division’s failure to accept 61 N.Y.2d 586 (1982). 7 The Appellate Divisions routinely look to foreign jurisdictions’ interpretations of their8 statutes to conduct the strict equivalency test. See, e.g., People v. Gillespie, 35 A.D.3d 880 (2d Dep’t 2006) (citing Indiana case law); People v. Thompson, 11 A.D.3d 395 (1st Dep’t 2004) (looking to Pennsylvania case law to interpret foreign statute’s phrase for “non-narcotic substance”); People v. Covington, 177 A.D.2d 1055 (4th Dep’t 1991) (relying on North Carolina case law); 6 that foreign statutes infrequently pass New York’s strict equivalency test, and that the inquiry ends after a facial comparison is conducted. Indeed, as respondent9 acknowledges, these reversals were often the result of the Appellate Divisions’ over- complicated and faulty invocation of the exception to the Olah rule. RB. at 47-48. As this Court has stressed, the exception allowing for consultation of the foreign accusatory instrument is generally not applicable. See Yusuf, 19 N.Y.3d 314, 321 (2012) (“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.”) (quoting People v. Muniz, 74 N.Y.2d 464, 467-68 (1989)). In cases for which the facial comparison of the statutes fails to resolve the dispute, the reviewing court can remand for further development of the record, or find that the claim concerns matters outside the record and therefore must be developed by way of a post-judgment motion under C.P.L. § 440.20. Because, as explained below, the illegality of the foreign D.C. conviction is This Court has repeatedly attempted to emphasize the strict equivalency nature of this test,9 particularly in recent years. This Court’s decision in Matter of North v. Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745 (2007), highlights the nature of this test’s strict application by way of comparison to the test conducted for determining whether an individual’s out-of-state sex offense requires registration in New York under an “essential elements” test. This Court remarked that “technical distinctions between the New York and foreign penal statutes can preclude use of a prior felony as a predicate for enhanced sentencing, even though the actual criminal conduct leading to the foreign conviction would have fallen within the ambit of the New York offense.” Id. at 751. The strict equivalency test “examines the elements of the foreign conviction to determine whether the crime corresponds to a New York felony, usually without reference to the facts giving rise to that conviction.” Id. 7 apparent from the record, there is no reason to hold Mr. Jurgins, or any defendant similarly situated, to a rule of preservation. Such a result would contravene case law recognizing the defendant’s right to be sentenced lawfully and would force defendants to raise their claims by a § 440.20 motion, undermining finality and adding a layer of litigation and unnecessary complexity which, ironically, are the very problems respondent protests. 2. The D.C. Predicate is Unlawful Both D.C. case law and a plain reading of the D.C. statute for robbery demonstrate that it is broader than its New York counterpart and so fails the strict equivalency test. As stated above, a foreign jurisdiction’s interpretations of its laws are not simply recommended, they are binding. See RB. at 21 (arguing that New York courts are “not bound by foreign decisions in ascertaining whether a particular conviction constitutes a felony under New York law”). “Where courts of New York find it necessary to construe the statutes of another state, they are bound to follow the construction which the courts of the other state have placed on its laws.” McKinney’s Cons Laws of NY, Book 1, Statutes § 261 (“Construction of foreign statutes”). This is because the “courts of the foreign state are presumed to be the best expositors of its laws.” Id. (“Comment”). Thus, this Court must reject respondent’s complex deconstruction of the D.C. statute (RB. at 16-24) in favor of the D.C. courts’ 8 interpretation of its own robbery statute. 10 Respondent’s argument that the statute is divisible into three acts is incorrect. As set forth in appellant’s main brief, the phrase “whoever by force or violence” is the statute’s operative act element defining robbery, which includes stealthy seizures and snatchings as well as takings “by putting in fear.” See App. Br. at 10-13. Even if a taking by “putting in fear” were read as a separate offense as respondent contends (RB. at 17-18) the statute still fails the strict equivalency test. Respondent acknowledges, as it must, that robbery in New York requires “physical force” or the “threaten[ed]” immediate use of physical force. RB. at 20; N.Y. Penal Law § 160.00. Since a taking by “putting in fear,” does not require the threatened immediate use of physical force, it is broader than New York’s robbery statute. Thus, as with takings “by force or violence,” a robbery “by putting in fear” under the D.C. statute encompasses conduct punishable under New York’s statute for grand larceny Mr. Jurgins maintains that it is D.C. case law which controls the foreign statute’s10 interpretation. But even if New York rules of construction are used to aid our interpretation of the statute, it would still be proper to read, “Whoever by force or violence” as the dependent clause with everything that follows, including “or by putting in fear,” as modifying language. In other words, the operative act element becomes a taking “by force or violence” with everything falling away as mere “ways” to commit the offense of robbery. See McKinney’s Cons Laws of NY, Book 1, Statutes § 254 (“where general words appear at the end of a sentence and following several possible antecedents, they usually refer to, and modify, the whole sentence and not merely the last preceding antecedent”). Respondent’s complex dissection of the statute, moreover, is contrary to § 253 (“Punctuation”), which directs that punctuation be considered “subordinate to the text.” See id. Comments (“[I]t has been stated that in construing statutes it is not a safe rule to place too much reliance on the punctuation . . .”). Legislators “are not necessarily charged with a knowledge of the rules of the English language,” and thus “[a]s a general rule, statutes are not to be construed by strict and critical adherence to technical grammatical rules.” Id. at § 251 (General Rules of Construction). 9 in the fourth degree, the attempt of which is a misdemeanor. See N.Y. Penal Law § 155.05(2)(e) (defining larceny “by extortion” to include takings by putting another or a third person in fear, and by means other than physical force). 11 Even if this Court were to disagree that the statute is facially invalid under the strict equivalency test, the accusatory instrument resolves the dispute in Mr. Jurgins’s favor, since it includes the operative act element “force or violence,” and that language encompasses conduct punishable as a misdemeanor in New York. See App. Br. at 13. B. Mark Jurgins Properly Challenged His Unlawful Predicate In a Post-Judgment Motion Under C.P.L. § 440.20. In addition to arguing that Mr. Jurgins’s claim is unpreserved, respondent asserts that Mr. Jurgins’s challenge to the foreign predicate was irrevocably waived by his failure to contest it at the predicate adjudication. Thus, respondent argues, Mr. Jurgins was procedurally barred from making a post-judgment challenge under C.P.L. § 440.20. See RB. at 50-67 (“Point Two: B.”). In fact, it was proper for Mr. Jurgins to raise his claim either on direct appeal or by a motion pursuant to C.P.L. § Respondent’s reading fails for another reason: even if the act elements were read as three11 separate takings, the D.C. statute still defines robbery as a takings “from the person” or the “immediate actual possession of another.” In New York, unlike D.C., takings from the “immediate actual possession of another” are not punishable as robbery, but rather as grand larceny in the fourth degree N.Y. Penal Law § 155.30 (defining grand larceny in the fourth degree to include takings other than those “from the person of another”), as well as petit larceny, an A misdemeanor. N.Y. Penal Law § 155.25 (“Petit larceny”). 10 440.20. Respondent cobbles its argument from three main sources: this Court’s two sentences in People v. Smith; C.P.L. § 400.21, the statute governing predicate12 adjudication procedures; and policy concerns over gamesmanship. What respondent fails to acknowledge, however, is that this Court’s later decision in Samms alone addresses and all but disposes of respondent’s arguments. As a preliminary matter, respondent erroneously relies on Smith to conflate the concept of waiver with preservation. The Smith Court found that defendant’s challenge to his federal kidnapping predicate had “not been preserved” for this Court’s review, but that opinion said nothing about waiver. 73 N.Y.2d at 962-63 (citing C.P.L. § 400.21(3)). See also People v. Ahmed, 66 N.Y.2d 307, 311 (1985) (“Waiver and preservation are separate concepts . . . [w]aiver connotes the intentional relinquishment or abandonment of a known right.”) (citations omitted). Instead, the waiver argument flatly rejected by this Court in Samms is the very argument 73 N.Y.2d 961 (1989). The Court summarily affirmed, and added a note about defendant’s12 challenge to his foreign predicate: 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 (C.P.L. § 400.21(3)). Accordingly any question concerning whether defendant’s prior conviction of kidnapping under 18 U.S.C. § 1201 is equivalent to his conviction of a felony in New York has not been preserved for our review. Id. at 962-63. 11 respondent makes now—that defendant’s silence at the time of his predicate adjudication constituted a waiver of his right to be sentenced in accordance with the predicate statutes. This Court renounced the notion that a defendant could “waive” his right to a lawful sentence through silence, granting relief even though “[n]o one said anything about the failure of the predicate to meet Penal Law § 70.04’s chronological requirements,” because “[d]efendant never expressly waived his right to be sentenced in accordance with statutory requirements that evidently escaped everyone.” 95 N.Y.2d at 55. For the same reason, respondent’s reliance on the provisions of C.P.L. § 400.21 fails. In holding that defendant Samms did not waive his right to have the prosecution satisfy the Penal Law’s requirements for predicates, this Court implicitly rejected the waiver argument respondent now engrafts onto the procedural provisions of C.P.L. § 400.21(3) and (8). RB. at 51-53, 63-66. That makes perfect sense, as those subsections have no bearing on the unlawful sentencing claim at issue in this case. Subsection (3) addresses the defendant’s failure to controvert the allegations in the statement—Mr. Jurgins is not contesting that he is the person named in the statement or that he was convicted of the D.C. offense, and that is all the court asked about at sentencing. (A. 20). Like defendant Samms, he challenges whether the conviction named in the statement qualifies as a lawful predicate under the Penal Law. 12 Respondent’s reliance on subsection (8) is equally misplaced. RB. at 63-66. That provision renders a predicate adjudication binding for “any future proceeding.” However, this Court has never applied the phrase “any future proceeding” to bar post-conviction challenges, whether on appeal or otherwise, to the adjudication in the instant case itself. See People v. Loughlin, 66 N.Y.2d 633, 635-36 (1985) (citing C.P.L. § 400.21(8) in holding that defendant’s prior adjudication as a second felony offender barred a challenge in the instant case because he had “failed to seek review of that adjudication by direct appeal or appropriate post-judgment motion”). See also, People v. Dais, 19 N.Y.3d 335, 346 (2012) (finding that C.P.L. § 400.21(8) precluded defendant from re-litigating his predicate adjudication at a DLRA re-sentencing because a “re-sentencing court could not revisit defendant’s prior adjudication as a predicate felon”) (emphasis added). Indeed, if that were so, defendant Samms would not have been able to bring his challenge before this Court. Further, that subsection (7)(b) of C.P.L. § 400.21 explicitly employs the word “waiver” in the context of a defendant’s failure to challenge a predicate on the grounds that it was “unconstitutionally obtained” requires an inference that the Legislature intended no such bar for other claims. McKinney’s Cons Laws of NY, Book 1 § 74, Legislative Silence (“A court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act 13 may be construed as an indication that its exclusion was intended.”).13 Of course, this Court has itself acknowledged that a post-judgment motion is a proper vehicle for challenging a predicate conviction. See, e.g., Fuller, 57 N.Y.2d 152 (considering defendant’s illegal sentence claim although she registered no objection “at sentence, by way of post-judgment motion or even on her appeal”) (emphasis added); Loughlin, 66 N.Y.2d at 635-36 (rejecting defendant’s challenge to a predicate adjudication entered in a prior case because defendant failed to seek review at that time by “appropriate post-judgment motion”). It would make no sense to bar a defendant from challenging an unlawful sentence where the Legislature has explicitly provided a vehicle through C.P.L. § 440.20 for asserting that right. Further, as stated earlier, respondent’s theory would relegate all unlawful predicate claims to the realm of ineffectiveness, begetting the very sort of protracted and complicated litigation respondent deplores. Finally, respondent’s accusations of potential gamesmanship is a red herring that ignores both a defendant’s right to negotiate a plea with an accurate understanding of the lawful sentencing range as well as the prosecution’s obligation to allege a lawful predicate in the first instance. RB. at 55-67. See also McKinney’s Cons Laws of NY, Book 1 § 240 (“The maxim expressio unius est13 exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.”). 14 It is preposterous to assume that defendants aware that their predicate is subject to challenge will sit silently by and allow the prosecution to leverage a higher and unlawful sentencing range. RB. at 56-57. Equally ridiculous is respondent’s suggestion that scores of prosecutors would proceed to trial if only they knew that the predicates they were alleging were unlawful. RB. at 56. Of course, it is unclear why the prosecution should be heard to complain later when it has proposed an erroneous predicate. RB. 56-57. If prosecutors are concerned with the legality of their foreign predicates under the strict equivalency test, then, as they bear the burden of establishing the predicate’s lawfulness, they should be more mindful of the rules governing these predicates. Nor does the prosecution suffer any prejudice, as, assuming the defendant’s unlawful sentence is vacated and re-sentencing ordered, the prosecution can swap in a different predicate, to the extent one exists, at the re-sentencing proceeding. It is disingenuous for respondent to state that, because the prosecution will not be able to get the plea back, the defendant still retains the benefit of his bargain; that defendant was never bargaining under the lawful sentencing range in the first place. See RB. at 57. Had the parties negotiated under the lawful range, the defendant may have decided to proceed to trial instead of subjecting himself to an enhanced sentence and a predicate adjudication that would expose him to more prison time in future proceedings. See C.P.L. § 400.21(8). 15 POINT II COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE AND CHALLENGE THE PREDICATE FELONY OFFENSE. There is no support for respondent’s allegation that counsel made a “strategic” decision in failing to challenge Mr. Jurgins’s predicate. At the outset, this argument necessarily assumes that the foreign predicate was, in fact, unlawful, and that counsel remained silent in the hope that her client’s exposure to enhanced sentencing would compel the prosecution to offer a lower sentence. Nevertheless, there is no reasonable construction of counsel’s affirmation that would enable this Court to find that counsel made a “calculated, strategic decision” in failing to challenge the foreign predicate. RB. at 27. Her affirmation explicitly states, “Had I known that there were grounds to challenge the predicate felony offense, I would have advanced those grounds.” A. 113. That statement demonstrates that she concluded, erroneously, that there were no grounds to challenge the predicate offense. By extension, she did not provide Mr. Jurgins with correct advice about his true sentencing exposure. Counsel’s performance was therefore constitutionally deficient. See, e.g., Mask v. Ginnis, 28 F. Supp. 2d 122, 125 (S.D.N.Y. 1998) (finding counsel ineffective when he failed to recognize that defendant was not a persistent violent offender) aff’d 233 F.3d 132 (2d Cir. 2000); People v. Garcia, 19 A.D.3d 17 (1st Dep’t 2005) (finding counsel ineffective when his misapprehension of 16 defendant’s predicate status did not allow him to “offer a plea in line with” proper predicate status). Respondent’s accusation that Mr. Jurgins “was aware of his ability to raise this challenge at the predicate felony adjudication and chose not to do so” (RB. at 67) is completely out of line given counsel’s sworn statement. Further, if the prosecution can substitute another lawful predicate, it has the burden of alleging it at a re-sentencing proceeding, and the propriety of its use must be determined at that time. Thus, this Court should reject respondent’s premature assertion that Mr. Jurgins was not prejudiced by her failure to challenge the predicate. RB. at 34. Mr. Jurgins was subjected to an illegal sentence that will bind him in future proceedings, and he was forced to negotiate a plea in the false belief that his D.C. conviction constituted a lawful basis for enhancing his sentence. As such, he suffered prejudice. CONCLUSION BECAUSE MARK JURGINS’S FOREIGN P R E D I C A T E V I O L A T E S T H E S T R I C T EQUIVALENCY TEST HIS SENTENCE MUST BE VACATED AND RE-SENTENCING ORDERED BY THIS COURT. Respectfully submitted, ___________________________ LISA A. PACKARD 17 PRINTING SPECIFICATIONS STATEMENT The brief was prepared in Wordperfect®, using a 14-point (12-point footnotes) Garamond font, and totaled 4,230 words. 18