AD1 order dated June 25, 2013, modifying judgment of conviction by reducing the sentence as excessive in the interest of justice and otherwise affirming the judgment and the order denying CPL 440.20 relief. Decision below: 107 AD3d 595, 968 NYS2d 56. Rivera, J., granted leave June 24, 2014. Argued October 22, 2015.

ISSUES PRESENTED: (1) Does People v. Smith (73 NY2d 961) bar an unpreserved direct-appeal challenge to an out-of-state predicate, where the out-of-state statute is, on its face, not the equivalent of a New York felony. (2) Alternatively, if Smith is a bar to an unpreserved direct-appeal challenge, is the issue cognizable on a CPL 440.20 motion challenging the legality of the predicate conviction, and (3) would it matter whether trial counsel was ineffective in failing to challenge the predicate. (Assigned counsel: Lisa A. Packard & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)

Issue: 

Jurgins presented a multitude of issues regarding the propriety of using an out-of-state conviction to enhance a defendant’s sentence under New York’s predicate felony sentencing scheme.  To be decided by the Court was whether a challenge could be made post-conviction when counsel did not object to the use of the out-of-state conviction at sentencing, how such a challenge should be raised if it could be raised post-conviction, and how to evaluate the merits of such claims.

 

Held:

Although the Court left open the possibility that a defendant could waive the right to challenge the invalidity of the predicate offense, a waiver of the claim could not be found from a silent record.  Here, the defendant was never asked about whether he was challenging the equivalency of the out-of-state conviction. Thus, the claim was not waived.

Although not waived, the claim could not be raised on direct appeal. The proper mechanism for raising the claim was a C.P.L. § 440.20 motion, the Court decided. As the appeal was a consolidated direct appeal and C.P.L. § 440.20 appeal, the issue was properly presented in the case.

As for the merits, the Court again sided with the defendant, finding that the Washington, D.C., statute for attempted robbery did not have a New York equivalent so as to be allowable as a predicate offense. Because the D.C. statute’s “force or violence” could (under the statute and under D.C. case law) be accomplished through a “stealthy snatching” (aka a pickpocketing), the D.C. statute encompassed conduct that would not constitute a felony in New York.

 

CAL Observes: 

This decision puts to rest the First Department’s requirement of a contemporaneous objection to the use of the out-of-state predicate and effectively overrules the First Department’s 2009 decision in People v. Kelly. As the Court of Appeals has adopted a “strict equivalency” test for use of the out-of-state predicates that disallows any foreign statute that could (no matter how theoretically) be violating without committing a New York felony, this case keeps the door firmly open to a multitude of challenges to out-of-state predicate offenses. Given the adoption/ reaffirmation of the critical, but oft misunderstood, distinction between the “ways” to commit the foreign offense and the “acts” required by the foreign statute, the ruling has the effect of disallowing nearly every foreign offense from being used as a predicate.

The Court’s recognition that this challenges to out-of-state predicates could be raised in a C.P.L. § 440.20 motion was a welcome interpretation of its decision in People v. Smith, 73 N.Y.2d 961 (1989). The Court’s explanation for why such a challenge could not also be raised on direct appeal, at least when examination of the foreign indictment is not necessary, does not make much sense. If the illegality of the sentence is evident from the record, there is little reason why the claim should not be able to be brought on direct appeal (where defendant enjoys the right to counsel). Moreover, the Court has never permitted an illegal sentence to stand, so why should a defendant be able to waive his right to a lawful sentence?  It is hard to imagine how there could be a valid waiver to such a claim when the validity of the waiver would require the defendant to know that his sentence was illegal.  In any event, we can imagine no circumstance where counsel could be found anything but ineffective – an non-waivable issue -- if counsel participates in a waiver colloquy during which his or her client waives their right to challenge the invalid predicate offense.