| People v Kelly |
| 2009 NY Slip Op 06383 [65 AD3d 886] |
| September 8, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JohnC. Kelly, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Eleanor J. Ostraw of counsel), forrespondent.
Judgment, Supreme Court, New York County (John Cataldo, J.), rendered November 1,2007, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree,and sentencing him, as a second violent felony offender, to a term of six years, affirmed. Order,same court and Justice, entered on or about December 8, 2008, that denied defendant's motionpursuant to CPL 440.10 and 440.20 to vacate the judgment and set aside the sentence, affirmed.
On October 11, 2007, defendant appeared with counsel and pleaded guilty, pursuant to a pleaagreement, to attempted robbery in the second degree. At the plea proceeding, defendant wasadjudicated a second violent felony offender because of a prior Maryland conviction for thecrime of abducting a child under 12 years old. Defendant admitted to the Maryland conviction,and, after conferring with counsel, answered in the negative when asked if he was making aconstitutional challenge to the Maryland conviction. The Clerk then arraigned defendant on thepredicate violent felony statement that alleged, inter alia, that the Maryland convictionrepresented "an offense which includes all of the essential elements of a violent felony as thatterm is defined in Penal Law § 70.02."
On July 8, 2008, defendant moved, pursuant to CPL 440.10 and 440.20, to vacate hisconviction and set aside his sentence, claiming that he was actually not a predicate violent felonyoffender, that he pleaded guilty under the mistaken belief he was and that his guilty plea wastherefore involuntary. Defendant also claimed that his attorney was ineffective for notchallenging his predicate violent felony adjudication at the plea proceeding.
Because defendant failed, during the plea proceedings, to raise the issue of whether thestatute under which he was convicted in Maryland is the equivalent of a New York violentfelony, defendant has waived that issue (People v Smith, 73 NY2d 961 [1989]). As theCourt of Appeals noted in People v Samms (95 NY2d 52, 57 [2000]): "Determiningwhether a particular out-of-State conviction is the equivalent of a New York felony may involveproduction and examination of foreign accusatory instruments and, conceivably, the resolutionof evidentiary disputes, all in the context of comparisons [*2]withthe law of other jurisdictions. In keeping with the rule of preservation, issues of that type must beraised and explored at the trial court level, where a record is developed for appellate review"(citations omitted). Here, defendant pleaded guilty after a negotiated plea deal and declined theopportunity to challenge the prior Maryland conviction as the basis for the predicate violentfelony. Because of the plea agreement, defendant received substantially less of a prison sentencethan he would have had he gone to trial and been found guilty. We will not set aside this bargain,the product of careful negotiations between the People and defendant's counsel, merely becauseof defendant's belated argument that the Maryland conviction did not constitute a predicateviolent felony under New York law.[FN*]
As an alternative holding, we find that defendant was properly adjudicated a second violentfelony offender. Defendant claims that the court should not have sentenced him as a secondviolent felony offender primarily because: (1) his out-of-state conviction in Maryland is notequivalent to a New York violent felony and (2) the People's predicate felony statement failed toset forth any tolling periods while relying on a conviction that was more than 10 years old.
Penal Law § 70.04 (1) (a) states, "A second violent felony offender is a person whostands convicted of a violent felony offense . . . after having previously beensubjected to a predicate violent felony conviction." Penal Law § 70.04 (1) (b) states: "Forthe purpose of determining whether a prior conviction is a predicate violent felony conviction thefollowing criteria shall apply: (i) The conviction must have been . . . of an offensewhich includes all of the essential elements of [a New York violent] felony."Thus, "[t]o determine whether a foreign crime is equivalent to a New York felony the court mustexamine the elements of the foreign statute and compare them to an analogous Penal Lawfelony" (People v Gonzalez, 61 NY2d 586, 589 [1984]; see also People v Muniz,74 NY2d 464, 467-468 [1989]). However, if the foreign statute "renders criminal not one act butseveral acts which, if committed in New York, would in some cases be felonies and in otherswould constitute only misdemeanors," the court may "go beyond the statue and scrutinize the[foreign] accusatory instrument" (Gonzalez at 590-591; see also Muniz at 468).
The Maryland statute under which defendant was convicted states: "Any person who shallwithout the color of right forcibly abduct, take or carry away any child under the age of twelveyears from the home or usual place of abode of such child, or from the custody and control of theparent or parents, or lawful guardian or guardians of such child, or be accessory thereto, or whoshall without such color of right and against the consent of the parent or parents or lawfulguardian or guardians of such child, [*3]persuade or entice fromthe usual place of abode or house of such child, or from the custody and control of the parent orparents, or guardian or guardians of such child, or be accessory thereto, or shall knowinglysecrete or harbor such child, or be accessory thereto, with the intent to deprive such parent orparents, guardian or guardians, or any person who may be in lawful possession of such child, ofthe custody, care and control of such child, shall be guilty of a felony, and upon conviction shallsuffer imprisonment in the penitentiary for a term not exceeding twenty years, in the discretionof the court." (Md Ann Code of 1957, art 27, § 2 [repealed by Acts 2002, ch 26, § 1(eff Oct. 1, 2002)].)
By comparison, Penal Law § 135.20 states "[a] person is guilty of kidnapping in thesecond degree when he abducts another person." Penal Law § 135.00 (2) defines "abduct"as "to restrain a person with intent to prevent his liberation by either (a) secreting or holding himin a place where he is not likely to be found, or (b) using or threatening to use deadly physicalforce."
Defendant's Maryland conviction easily qualifies as a New York felony. Maryland's formercrime of abducting a child under 12 by forcibly taking a child from his or her home or parents isequivalent to the New York felony of second-degree kidnapping (see People v Antonio, 58 AD3d515 [2009] [evidence was sufficient to support conviction for attempted second-degreekidnapping where defendant, in pursuit of frightened child, told bystander from whom childsought protection that he was child's father and reached out for her hand, evincing intent torestrain her]; People v Cassano, 254 AD2d 92, 93 [1998], lv denied 92 NY2d1029 [1998] [defendant's actions in grabbing two-year-old child from custody of his uncle andwalking swiftly into crowded street demonstrated intent to abduct victim sufficient for aconviction of attempted kidnapping in the second degree]).
To establish a predicate felony, Penal Law § 70.04 also requires that imposition of thesentence on the prior conviction be "not more than ten years before commission of the felony ofwhich the defendant presently stands convicted." (Subd [1] [b] [iv].) It further provides that incalculating the ten-year period "any period of time during which the person was incarcerated forany reason between the time of commission of the previous felony and the time of commissionof the present felony shall be excluded and such ten year period shall be extended by a period orperiods equal to the time served under such incarceration" (Penal Law § 70.04 [1] [b] [iv],[v]).
Defendant does not dispute that in fact his incarceration was long enough that the priorsentence was imposed within the 10-year limitation. Instead, he contends that the predicateviolent felony statement the People filed was facially defective because the Maryland convictionthe statement identifies occurred more than 10 years before the present felony, and the statementdoes not set forth a term of incarceration that could be used to toll the 10-year limitation period.However, defendant failed to raise the claim that the predicate felony statement was faciallyinsufficient because it omitted tolling information at the time of his original predicate felonyadjudication. Thus, this claim is unpreserved for review (People v Ross, 7 NY3d 905 [2006]; People v Smith, 73NY2d 961 [1989]; People v Bouyea, 64 NY2d 1140 [1985]). Moreover, as the recordreflects that defendant's period of incarceration related to the Maryland case satisfied the 10-yearlimitation period, any failure to list the tolling period on the predicate violent felony statementwas harmless (see Bouyea, 64 NY2d at 1142).
As defendant's challenges to his sentencing as a second violent felony offender lack merit,his first counsel was not ineffective for failing to raise them.
We have considered defendant's remaining contentions and find them unavailing. [*4]Concur—Saxe, J.P., Moskowitz and Acosta, JJ.
Buckley and McGuire, JJ., concur in a separate memorandum by McGuire, J., as follows:Defendant's challenges to his adjudication as a second violent felony offender on the basis of theMaryland conviction are not preserved for review due to his failure to controvert any of theallegations in the predicate violent felony offender statement filed by the People (CPL 400.15 [3]["Uncontroverted allegations in the statement shall be deemed to have been admitted by thedefendant"]; cf. CPL 400.15 [7] [b] ["Failure to challenge the previous conviction in themanner provided herein constitutes a waiver on the part of the defendant of any allegation ofunconstitutionality unless good cause be shown for such failure to make timely challenge"]).Moreover, as the majority correctly holds, defendant's claim that he need not preserve for reviewhis claim that the Maryland conviction is not equivalent to a felony in New York is refuted byPeople v Smith (73 NY2d 961 [1989]). In Smith, the Court held that because thedefendant failed timely to controvert the allegations of the predicate felony statement, "anyquestion 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 ourreview" (id. at 963).
Nor are defendant's other challenges— (1) that the Maryland conviction occurredmore than 10 years before the present offense and the statement failed to allege any tollingperiods, and (2) that the statement miscited the Maryland statute—preserved for review. Incontrast to the sequentiality claim that the Court of Appeals held did not need to be preserved forreview by timely objection (People v Samms, 95 NY2d 52 [2000]), the validity of thesechallenges cannot "be determined from the face of the appellate record" so that "[n]o resort tooutside facts, documentation or foreign statutes is necessary" (id. at 57). Unlike thesequentiality challenge in Samms, in this case a lack of sentencing authority is not"manifest" "[w]hen the [predicate violent felony offender] statement is considered along withother information the court had before it" (id. at 58). Rather, defendant's challengespresent "issues of [the] type [that] must be raised and explored at the trial court level, where arecord is developed for appellate review" (id. at 57).
People v Ross (7 NY3d905 [2006]) provides additional support for the People's position that defendant waived hisclaim that the second violent felony offender statement was defective because, contrary to themandate of CPL 400.15 (2), it did not "set forth . . . the place of imprisonment foreach period of incarceration to be used for tolling of the ten year limitation set forth insubparagraph (iv) of paragraph (b) of [Penal Law § 70.04 (1)]." In Ross, contraryto the statutory requirement that "a statement must be filed by the prosecutor before sentence isimposed setting forth the date and place of each alleged predicate felony conviction" (CPL400.21 [2]), the People failed to file any predicate felony statement (7 NY3d at 906). Atthe plea proceeding, however, "defendant waived receipt of the statement and, upon questioningby the judge, declined to contest his predicate felonies" (id.).
On these facts, the Court of Appeals held that "[b]ecause information before the sentencingcourt established that defendant had been convicted of a known and identified felony within thetime required by the statute, his waiver of his rights to receive a predicate felony statement andto controvert its allegations (see CPL 400.21 [2], [3]) was valid" (id.). Here, thePeople did file a second violent felony offender statement and defendant, "upon questioning bythe judge, declined to contest" the allegation that he was a second violent felony offender. To be[*5]sure, defendant did not expressly state in haec verba that hewas waiving any claim that the 10-year limitation period had not been satisfied. But the possibleapplicability of the limitation period not only was apparent from the face of the statement, butthe court expressly raised the issue of the limitation period after defendant was arraigned on thestatement. After conferring with counsel, defendant himself expressly declined to controvert theallegation that he was a second violent felony offender. Moreover, defendant's argument that thesecond violent felony offender statement is fatally defective because CPL 400.15 (2) states thatthe statement "shall" set forth the facts relating to any period of incarceration to be used fortolling purposes, proves too much. The same statute also states that "[u]ncontroverted allegationsin the statement shall be deemed to have been admitted by the defendant" (CPL 400.15[3] [emphasis added]).[FN1]
The conclusion that defendant cannot obtain relief on the basis of these belated challenges(absent an exercise of our interest of justice jurisdiction), is supported as well by the corepurposes of the contemporaneous-objection rule embodied in CPL 470.05 (2)—promotingfinality and preventing gamesmanship and the waste of judicial resources through therequirement of a specific and timely objection (see People v Lopez, 71 NY2d 662, 665[1988]; People v Dekle, 56 NY2d 835, 837 [1982])—and a central purpose of pleabargaining—to "mark[ ] the end of a criminal case, not a gateway to further litigation"(People v Taylor, 65 NY2d 1, 5 [1985]). At the time of the guilty plea, when defendantwas arraigned on and failed to controvert the allegations of the predicate violent felony offenderstatement, he had powerful incentives not to challenge the statement's allegations. Had hechallenged them, he may have imperiled the plea bargain, thereby exposing himself to the risk ofbeing convicted after trial of the top count of the indictment, a class B violent felony offense forwhich a maximum sentence of 25 years is authorized even if defendant is not a second violentfelony offender (Penal Law § 70.02 [3] [a]).[FN2]Under these circumstances, it makes no sense to permit defendant to wait more than six monthsafter sentencing to raise for the first time these challenges to his adjudication as a second violentfelony offender. Regardless of whether the delay in this case would have [*6]prejudiced the People's ability to prosecute defendant, permitting adefendant to raise such challenges for the first time in a CPL 440.10 or a CPL 440.20 motionwould prejudice the People in at least some cases. After all, no provision of CPL 440.10 or CPL440.30 would require these challenges to be made within a particular time period or even thatthey be prosecuted diligently. Defendant could have raised these challenges when he wasarraigned on the second violent felony offender statement, but failed both to do so and to offergood cause for that failure. Accordingly, we should give effect to the statutory directive that"[w]here a finding has been entered pursuant to this section, such finding shall be binding uponthat defendant in any future proceeding in which the issue may arise" (CPL 400.15 [8][emphasis added]; see generally People v Crippa, 245 AD2d 811 [1997], lvdenied 92 NY2d 850 [1998]; People v Polowczyk, 157 AD2d 865 [1990], lvdenied 75 NY2d 922 [1990]).
In my view, because defendant has waived these claims that the sentence is illegal, i.e., hisclaims that he is not a second violent felony offender, he also has waived the claim that the pleawas involuntary because of a "mistaken" belief that he was a second violent felony offender. Ifdefendant's claims that he is not a second violent felony offender must be deemed meritless, hisclaim that he pleaded guilty because of a "mistaken" belief that he was such an offender alsomust be deemed meritless. In this regard, I agree with the majority that People v Bennett (60 AD3d 478[2009]) is not to the contrary, as the People did not argue, either when the defendant moved tovacate the sentence or on appeal, that he had waived his claim that he was not a second felonyoffender. Rather, the People conceded that the defendant was improperly adjudicated a predicatefelon.
Unlike the majority, I see no reason to reach the merits of defendant's untimely challenges tohis adjudication as a second violent felony offender. Defendant's failure to controvert theallegations of the statement is a sufficient ground for rejecting those challenges, and theimportant goals of finality, conservation of judicial resources and prevention of gamesmanshipare furthered by not reviewing the merits.
Finally, defendant is not entitled to any relief on his claims that his counsel was ineffectivebecause (1) she failed to challenge the allegation that he was a second violent felony offender,and (2) at a pretrial hearing, she "spoke out against defendant's pro se motion to have herrelieved and effectively called him a liar" and later "announced that her client had threatened herand that communications had broken down." In his CPL 440.10 motion, defendant never raisedeither claim, and he thus "has failed to show 'the absence of strategic or other legitimateexplanations' for the various aspects of counsel's conduct challenged on appeal (People vRivera, 71 NY2d 705, 709 [1988])" (People v Holman, 14 AD3d 443, 443 [2005], lv denied 4NY3d 887 [2005]). As noted above, with respect to the first of these claims of ineffectiveassistance of counsel, the existing record makes clear that counsel could have believed that itwas not in defendant's best interest to challenge the allegation that he was a second violentfelony offender as such a challenge might have jeopardized a favorable plea bargain. Moreover,the existing record does not exclude the possibility that counsel discussed this very concern withdefendant prior to or during the plea proceeding. Whether under different circumstances, such aswhen a defendant is pleading guilty to the top count of an indictment, the failure to controvert apredicate [*7]felony offender statement might support a claim ofineffective assistance of counsel, is a matter we need not address.
Footnote *: Our recent decision in People v Bennett (60 AD3d 478[2009]) has no bearing on this appeal. In that case, the People did not argue waiver and concededthat the defendant was improperly sentenced and we found their argument that defendant'sexposure as a predicate felon did not affect his plea to be speculative.
Footnote 1: As the People argue, moreover,in People v Sullivan (153 AD2d 223, 231-233 [1990], lv denied 75 NY2d 925[1990]), a panel of the Second Department held that by not controverting the allegations of thepredicate felony statement, the defendant had failed to preserve his appellate claim that thestatement was defective because it failed to set forth the information necessary to determinewhether the 10-year limitation had been satisfied. In the cases cited by defendant in which thisCourt has discussed this limitation period, this Court did not address the issue of whether thedefendant had waived his claim that the limitation period had not been satisfied (see e.g. People v Ortiz, 19 AD3d281 [2005], lv denied 5 NY3d 809 [2005]; People v Johnson, 196 AD2d 408[1993], lv denied 806 [1993]). People v Mendoza (207 AD2d 715 [1994]) andPeople v Rodriguez (191 AD2d 287 [1993], lv denied 81 NY2d 1019 [1993]),other cases cited by defendant, are not relevant as they involve sequentiality claims.
Footnote 2: For this reason, I would notreview defendant's challenges in the interest of justice.