The People v. Mark Jurgins

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 178

The People &c.,

Respondent,

v.

Mark Jurgins,

Appellant.

Lisa A. Packard, for appellant.

Catherine M. Reno, for respondent.

STEIN, J.:

Defendant contends that his prior Washington, D.C.

conviction for attempt to commit robbery is not equivalent to any

New York felony and, therefore, did not provide a proper basis

for his second felony offender adjudication. Because we agree

that defendant was erroneously sentenced as a predicate felon

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based on that conviction, we reverse and remit for further

proceedings.

I.

In satisfaction of a 12-count indictment, defendant

pleaded guilty to the top count of robbery in the first degree.

Pursuant to the plea offer, defendant's guilty plea was in

exchange for a promised sentence of 11 years in prison, plus five

years of postrelease supervision, assuming that defendant

complied with certain conditions. The plea included treating

defendant as a second felony offender. During the plea colloquy,

the court clerk read a second felony information based on a 2000

Washington, D.C. conviction (the D.C. conviction) for attempt to

commit robbery, and advised defendant that he could challenge it

on two grounds: that he was not the person named, or that the

conviction was unconstitutionally obtained. Defendant did not

challenge the prior conviction on either of those grounds, and

Supreme Court thereafter adjudicated him a second felony

offender. At sentencing, the court found that defendant had

violated a condition of the plea. In accordance with its earlier

warning regarding such a violation, the court sentenced defendant

to 25 years in prison, plus five years of postrelease

supervision.

Defendant thereafter moved pursuant to CPL 440.20 to

set aside his sentence on the grounds that he was denied the

effective assistance of counsel at sentencing and was unlawfully

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sentenced as a second felony offender. In his motion, defendant

asserted that he had agreed to the plea on the mistaken

assumption that he was a second felony offender, as there was no

discussion of how or whether the D.C. conviction was equivalent

to a felony in New York. Supreme Court denied defendant's

motion.

Upon defendant's consolidated appeals from the judgment

of conviction and the denial of his CPL 440.20 motion, the

Appellate Division held that defendant's argument that his

predicate felony was not equivalent to a New York felony was

unpreserved and, alternatively, without merit (107 AD3d 595 [1st

Dept 2013]). The Court also rejected his argument alleging

ineffective assistance of counsel. However, the Court found the

sentence to be excessive and, therefore, modified the judgment

in the interest of justice by reducing the prison term from 25

years to 15 years. A Judge of this Court granted defendant leave

to appeal (23 NY3d 1021 [2014]).

II.

Contrary to the People's contention, defendant did not

waive his current argument as to the legality of his sentence.

Waiver cannot be accomplished through silence (see People v

Dickinson, 18 NY3d 835, 836 [2011]). Thus, defendant's

statements that he was not challenging the predicate felony

information on the two grounds delineated by the court clerk did

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not constitute a waiver of other, unmentioned grounds.1 We,

therefore, conclude that defendant did not affirmatively and

knowingly relinquish his rights to challenge whether the foreign

conviction qualified as a predicate felony and to be properly

sentenced (see People v Samms, 95 NY2d 52, 55 [2000]; compare

People v Ross, 7 NY3d 905, 906 [2006]).

Apart from the distinct question of waiver -- which the

dissent conflates with the issue of preservation -- we also

disagree, at least partially, with the People's assertion that we

cannot reach defendant's challenge to the legality of the second

felony offender determination because that challenge is

unpreserved. This challenge reaches us in two separate ways in

this consolidated appeal -- defendant's appeal is from both the

judgment of conviction and from the denial of his subsequent

motion to set aside the sentence pursuant to CPL 440.20. As for

the direct appeal, we agree that defendant did not preserve his

current argument because he failed to argue at or before

1

The dissent asserts that defendant waived his claim based

on the language of CPL 400.21 (3) that allegations in the

predicate felony statement are deemed admitted if not

controverted. However, for that rule to apply, the court must

ask the defendant if he or she "wishes to controvert any

allegation made" in the predicate felony statement (CPL 400.21

[3]). Here, the court asked defendant whether he had out-of-

state convictions and stated that they could be considered as

felonies if committed in New York. However, this colloquy did

not occur in connection with the discussion of the predicate

felony statement, nor was it addressed to any particular

conviction, let alone the one that formed the basis of the

predicate felony finding. As the court did not adhere to the

statutory requirement, there was no waiver.

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sentencing that the D.C. conviction could not qualify as a

predicate felony (see People v Smith, 73 NY2d 961, 962-963

[1989]; People v Parker, 121 AD3d 1190, 1190 [3d Dept 2014]).

However, defendant's challenge to his sentence is

preserved for our review insofar as it was raised in his CPL

440.20 motion.2 A CPL 440.20 motion is the proper vehicle for

raising a challenge to a sentence as "unauthorized, illegally

imposed or otherwise invalid as a matter of law" (CPL 440.20

[1]), and a determination of second felony offender status is an

aspect of the sentence (see CPL 70.06 [included in CPL article

70, addressing sentences of imprisonment]). One of the legal

defects that can be challenged in a CPL 440.20 motion is an

alleged error in sentencing a defendant as a second or third

felony offender, including the decision to consider certain prior

convictions as predicates. Raising the predicate felony

sentencing issue in a CPL 440.20 motion serves the goals and

purposes of the preservation rule by permitting the parties to

present their arguments on the issue in the trial court, creating

a record for appellate review, and allowing the trial court the

2

Notably, "[a] motion [pursuant to CPL 440.20] to set aside

[a] sentence may be brought even though the illegality upon which

it is grounded presently is appealable or could with due

diligence have been appealed. The rationale for the distinction

[in this regard between motions pursuant to CPL 440.10 and

440.20] is that an illegal sentence should be subject to

challenge and rectification in the trial court without compelling

the defendant to pursue the more lengthy and cumbersome appellate

procedure" (Peter Preiser, Practice Commentaries, McKinney's Cons

Laws of NY, Book 11A, CPL 440.20 at 11).

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first opportunity to correct any error.3 Thus, we may address

defendant's current challenge -- that the sentence was illegal

because the D.C. conviction did not render him a second felony

offender -- on the appeal of the denial of his CPL 440.20 motion

to set aside the sentence.

On the merits, the only element of the second felony

offender statute at issue is whether the D.C. conviction is the

equivalent of a New York felony, a matter which the People bore

the burden of establishing (see People v Yancy, 86 NY2d 239, 247

[1995]). As relevant here, a prior out-of-state conviction

qualifies as a predicate felony conviction if it involved "an

offense for which a sentence to a term of imprisonment in excess

of one year . . . was authorized and is authorized in this state"

(Penal Law § 70.06 [1] [b] [i]). Because New York authorizes a

prison sentence of more than one year only for felonies, we must

determine whether defendant's foreign conviction is equivalent to

a New York felony (see People v Ramos, 19 NY3d 417, 419 [2012];

3

The dissent complains that the purpose of preservation is

not achieved here because this case requires reliance on

materials outside the record, specifically the D.C. statute and

D.C. case law. We acknowledge that defendant did not include the

foreign statute in his CPL 440.20 motion papers, where he raised

his legal arguments concerning that statute. However, the

applicable law is unlike factual information that must be

included in a record. Courts routinely consult New York statutes

and case law to ensure lawful sentencing, but we do not require

the law, itself, to be placed in the record. The result should

be no different where it is necessary for a court to refer to the

law of another state; under such circumstances, we can take

judicial notice of the law of the foreign jurisdiction.

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People v Muniz, 74 NY2d 464, 467 [1989]; People v Gonzalez, 61

NY2d 586, 592 [1984]).

The general rule limits this inquiry "to a comparison

of the crimes' elements as they are respectively defined in the

foreign and New York penal statutes" (Muniz, 74 NY2d at 467-468;

see People v Yusef, 19 NY3d 314, 321 [2012]). In this regard,

courts generally should consider only the statutes defining the

relevant crimes, and may not consider the allegations contained

in the accusatory instrument underlying the foreign conviction

(see People v Olah, 300 NY 96, 98 [1949]). However, under a

narrow exception to the Olah rule, the underlying allegations

must be considered when "the foreign statute under which the

defendant was convicted renders criminal several different acts,

some of which would constitute felonies and others of which would

constitute only misdemeanors [or no crime] if committed in New

York" (Muniz, 74 NY2d at 468; see Gonzalez, 61 NY2d at 590;

People ex rel. Goldman v Denno, 9 NY2d 138, 140 [1961]; People ex

rel. Gold v Jackson, 5 NY2d 243, 245-246 [1959]). In those

circumstances, the allegations will be considered in an effort to

"isolate and identify" the crime of which the defendant was

accused, by establishing "which of those discrete, mutually

exclusive acts formed the basis of the charged crime" (Muniz, 74

NY2d at 468-469). The analysis requires us to

"distinguish between the specific criminal

acts required by a penal statute and the

various ways in which the statutory crime may

be committed. The former concerns the

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crime's statutory elements and is relevant to

the Penal Law § 70.06 (1) (b) (i) inquiry;

the latter concerns the underlying facts and

. . . is not relevant to that inquiry" (id.

at 471).

The D.C. statute underlying defendant's prior

conviction provides that, "[w]hoever by force or violence,

whether against resistance or by sudden or stealthy seizure or

snatching, or by putting in fear, shall take from the person or

immediate actual possession of another anything of value, is

guilty of robbery" (DC ST § 22-2801; see DC ST § 22-2802 [attempt

to commit robbery]). In New York, robbery is defined as

"forcible stealing. A person forcibly steals property and

commits robbery when, in the course of committing a larceny, he

[or she] uses or threatens the immediate use of physical force

upon another person" to prevent resistance to the taking or to

compel the owner to deliver up the property (Penal Law § 160.00;

see Penal Law § 110.00 [defining attempt to commit a crime]).

The parties agree that a taking "by sudden or stealthy

seizure or snatching" would not be considered a robbery or other

felony in New York, inasmuch as it is akin to pickpocketing, or

the crime of jostling, which is a misdemeanor in this state (see

Penal Law § 165.25). However, the parties dispute whether the

D.C. statute describes different ways to commit the crime of

robbery or specific criminal acts that are required under the

statute. We interpret the dependent clause between the first two

commas in the D.C. statute as modifying the first phrase, "by

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force or violence." That is, a taking "by force or violence" can

be committed in several different ways, including "by sudden or

stealthy seizure or snatching." Our reading of the statute is

consistent with that of the D.C. courts that have interpreted its

language (see United States v Mathis, 963 F2d 399, 408 [DC Cir

1992] [noting that this same statute can be violated by

pickpocketing]; Jackson v United States, 359 F2d 260, 262-263 [DC

Cir 1966]; see also Williams v United States, 113 A3d 554, 560

[DC Ct of Appeals 2015]).

Thus, as relevant here, under the D.C. statute the

taking can occur (1) by force or violence, or (2) by putting in

fear.4 The force or violence element can be accomplished (1)

against resistance, or (2) by sudden or stealthy seizure, or (3)

by snatching (see Mathis, 963 F2d at 408). Stated another way,

"the statute must be interpreted to include 'stealthy seizure' as

a form of 'force or violence'" (id.). The statutory language

means that the crime can be committed in different ways, and the

phrase "sudden or stealthy seizure or snatching" does not

describe separate criminal acts required by the statute in

addition to the use of "force or violence" (see Jackson, 359 F2d

at 262-263). Consequently, we do not look at the underlying

accusatory instrument to determine if the crime is equivalent to

a New York felony (see Yusef, 19 NY3d at 321). Because the

4

The alternative element of "putting in fear" is not at

issue here.

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statute, itself, indicates that a person can be convicted of the

D.C. crime without committing an act that would qualify as a

felony in New York (i.e., by pickpocketing), defendant's D.C.

conviction for attempt to commit robbery was not a proper basis

for a predicate felony offender adjudication (see Ramos, 19 NY3d

at 420).

The illegal determination that defendant is a second

felony offender must, therefore, be vacated and the matter

remitted for further proceedings pursuant to CPL 440.20. Upon

remittal, the People may allege a different prior felony

conviction -- if one exists -- as a basis for a predicate felony

adjudication (see People v Marrero, 3 NY3d 762, 763 [2004];

People v Hunt, 162 AD2d 782, 783-784 [3d Dept 1990], affd 78 NY2d

932 [1991], cert denied 502 US 964 [1991]). Based on this

determination, we need not reach defendant's argument regarding

ineffective assistance of counsel.

Accordingly, the order of the Appellate Division should

be reversed, and the matter remitted to Supreme Court for further

proceedings in accordance with this opinion.

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The People of the State of New York v Mark Jurgins

No. 178

PIGOTT, J. (dissenting):

The majority's decision today exempts defendant's post-

conviction motion from the same rules of preservation that bar

his direct appeal. Because this distinction has no basis in law

or in logic and runs afoul of our longstanding preservation

jurisprudence, I dissent and would affirm the order of the

Appellate Division.

As the majority correctly recognizes, a challenge to

the equivalency of a foreign felony conviction must be preserved

by timely objection in the sentencing court (see People v Smith,

73 NY2d 961, 961 [1989]). This is so because determining whether

a particular out-of-state conviction is the equivalent of a New

York felony may involve the production and examination of foreign

accusatory instruments and, conceivably, the resolution of

evidentiary disputes, all in the context of comparisons with the

law of other jurisdictions (see People v Samms, 95 NY2d 52, 57

[2000]).

Timely objection is also required by statute. Section

400.21 of the Criminal Procedure Law governs the procedure to be

used when the People seek an enhanced sentence based on a

defendant's prior conviction. It requires the People to provide

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the defendant with a predicate felony statement, setting forth

the date and place of the prior conviction and alleging that the

prior conviction is a valid "predicate" within the meaning of

Penal Law § 70.06 (CPL 400.21[2]). The court must provide the

defendant an opportunity to object to or controvert the

allegations in the People's statement (CPL 400.21[3]). Any

"[u]ncontroverted allegations shall be deemed to have been

admitted" (id.).

The People complied with CPL 400.21 in this case by

providing defendant with a predicate felony statement containing

the date and place of his prior attempted robbery conviction. It

clearly stated that his D.C. conviction for attempted robbery

constituted "a predicate felony, as defined in [Penal Law

§ 70.06(1)(b)]." The court explained to defendant that he had

out-of-state convictions that would be the equivalent of felonies

if they had occurred in New York, and the court asked if

defendant understood that the convictions would be recognized as

felonies. Defendant stated that he understood and that he still

wished to plead guilty. Therefore, the allegations in the

statement, including the allegation that defendant's D.C.

conviction is a valid predicate felony, were deemed admitted (see

CPL 400.21[3], [8]).

The fact that the court's colloquy did not specifically

address the D.C. conviction does not excuse defendant from his

statutory obligation to object (see majority op at 4 n 1). We

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have previously held that the "statutory purposes for filing a

predicate statement (CPL 400.21) [are] satisfied" when a

defendant is provided "with reasonable notice and an opportunity

to be heard" (People v Bouyea, 64 NY2d 1140, 1142 [1985]). Here,

although he was given a copy of the predicate felony statement

and admitted to the existence of the prior conviction, defendant

"raised no challenge to the court's consideration of the prior

conviction" and "made no objection to being sentenced as a

predicate felon" (id.). Therefore, defendant's claim has been

statutorily waived (see People v Hummel, 127 AD3d 1506, 1507 [3d

Dept 2015] [rejecting defendant's challenge to his second felony

offender status based on the court's failure to comply with CPL

400.21(3) because defendant failed to object at sentencing and

because "there was substantial compliance with CPL 400.21"]).

It is difficult to overstate how consistently the

courts of this state have relied on CPL 400.21 and our holding in

Smith to reject claims like the one defendant raises here. The

Appellate Divisions uniformly find challenges to the equivalency

of a foreign felony conviction unpreserved or waived where

defendants fail to raise the issue at sentencing (see People v De

Aga, 74 AD3d 552, 552 [1st Dept 2010] [finding defendant's

challenge to the equivalency of his foreign felony conviction

unpreserved based on CPL 400.21 and Smith but reaching the issue

in the interest of justice]; People v Kelly, 65 AD3d 886, 887

[1st Dept 2009], lv denied 13 NY3d 860 [2009] [finding

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defendant's claim unpreserved based on CPL 400.21 and Smith];

People v Delston, 62 AD3d 1023, 1023 [2d Dept 2009], lv denied 13

NY3d 836 [2009] [same]; People v Crippa, 245 AD2d 811, 812 [3d

Dept 1997] [same]; People v Gonzalez, 61 AD3d 1428, 1429 [4th

Dept 2009] [same]; see also Delston v New York, 2010 WL 3004591

*17-18 [ED NY 2010] [finding defendant's claim that he was

improperly sentenced as a second felony offender procedurally

barred from habeas review because he failed to controvert the

equivalency of the foreign conviction at sentencing]).

Notably, each of the defendants in the aforementioned

cases raised his claim in a CPL 440.20 motion to set aside the

sentence. Unlike the majority, those courts draw no distinction

between a direct appeal and a post-conviction motion for purposes

of preservation. And rightly so. Nothing in the Criminal

Procedure Law or our decisions interpreting it allows us to

review unpreserved claims simply because they are raised in a CPL

440.20 motion. Rather, the purpose of CPL 400.21(3) and our

contemporaneous-objection rule is to promote finality and prevent

further litigation over belated claims like the one defendant

raises here, which could have been resolved with a specific and

timely objection (see CPL 470.05[2]; People v Lopez, 71 NY2d 662,

665 [1988]).1 The majority's decision today burdens trial courts

1

To be sure, defendant had every incentive not to object to

the foreign felony conviction. The agreement he negotiated

allowed him to plead guilty to one count of robbery in the first

degree in satisfaction of the twelve charges for which he was

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with an issue that can and should be litigated in the first

instance. In the process, it has allowed this defendant to

achieve an end-run around our preservation rules that I suspect

future litigants will repeat.

Although I would not reach the merits of defendant's

unpreserved claim, since the majority has, I will express my

disagreement on that front as well.

The majority holds that the courts below erred in

looking beyond the elements of the D.C. and New York robbery

statutes because DC Code § 22-801 does not criminalize different

acts of robbery but merely different ways of committing a

robbery, one of which would not be a felony if committed in New

York (majority op at 9). This is a hypertechnical reading of the

D.C. statute and of our decisions regarding the equivalency of

foreign felony convictions.

As originally conceived, the Olah rule (see majority op

at 10) did not require courts to abstain altogether from

considering the factual allegations of a charge. It merely

acknowledged that indictments often contain nonessential facts

that go beyond what the statute requires (see People v Olah, 300

NY 96, 101 [1949]). And if we considered only the indictment in

determining whether a defendant was convicted of a crime in

another jurisdiction that would be a felony if committed in New

York, we would run the danger of extending or enlarging the crime

indicted.

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of which he was actually convicted (id.).

The facts in Olah provide the perfect example. The

defendant in that case was accused of having stolen a wallet, in

New Jersey, that contained $200. Although it was a felony in New

York to steal more than $100, the defendant in Olah pleaded

guilty to a New Jersey offense that made it a crime to steal $20

or more. By looking at the facts of the indictment rather than

the statutory elements, the lower court said that defendant's New

Jersey conviction was equivalent to a felony in New York because,

as the indictment alleged, he stole more than $100. We reversed,

stating it did not matter whether the defendant in fact stole

more than $100, because he pleaded guilty only to stealing $20

(id. at 100). Similarly, if the defendant had gone to trial in

New Jersey and been found "guilty," the verdict would have

reflected only that he stole money that amounted to at least $20

because the prosecution never would have had to prove beyond a

reasonable doubt that defendant stole more than $100, as New York

requires.

Thus, the "intent and spirit of the Olah rule require

that the courts of New York abstain from considering surplusage

contained in the indictment or information" (People ex rel. Gold

v Jackson, 5 NY2d 243, 245 [1959] [emphasis added]; see also

People v Muniz, 74 NY2d 464, 470 [1989] [finding it improper to

look to the factual allegations in an accusatory instrument only

where the controversy does not turn upon them]). It does not

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prohibit us from considering the accusatory instrument in order

to clarify or identify the particular crime of which defendant

was convicted (People v Gonzalez, 61 NY2d 586, 591 [1984]; Muniz,

74 NY2d at 468).

A practical reading of the D.C. statute at issue shows

that it criminalizes multiple acts, all of which would be

felonies in New York (acts of violence and force and by putting

in fear) except one, which would be a misdemeanor (taking

property by sudden or stealthy seizure or snatching) (see DC ST §

22-2801). In order to ascertain the particular crime of which

defendant was convicted, it was appropriate for the courts below

to consider the facts alleged in the accusatory instrument. When

they did, it became clear that defendant was convicted of

attempted robbery for using force or violence against resistance

and for putting the victim in fear, both of which would be

felonies if committed in New York. If the opposite had been true

-- if defendant indeed had been a pickpocket -- those facts too

could be considered by the sentencing court and the predicate

felony statement rejected. Thus, the importance of preservation.

* * * * * * * * * * * * * * * * *

Order reversed and case remitted to Supreme Court, Bronx County,

for further proceedings in accordance with the opinion herein.

Opinion by Judge Stein. Chief Judge Lippman and Judges Rivera,

Abdus-Salaam and Fahey concur. Judge Pigott dissents and votes

to affirm in an opinion.

Decided December 17, 2015

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