| People v Jurgins |
| 2013 NY Slip Op 04743 [107 AD3d 595] |
| June 25, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Mark Jurgins, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Catherine M. Reno of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Colleen D. Duffy, J.), rendered July 2,2010, convicting defendant, upon his plea of guilty, of robbery in the first degree, andsentencing him, as a second felony offender, to a term of 25 years, unanimouslymodified, as a matter of discretion in the interest of justice, to the extent of reducing thesentence to a term of 15 years, and otherwise affirmed. Order, same court and Justice,entered on or about January 27, 2012, which denied defendant's CPL 440.20 motion toset aside the sentence, unanimously affirmed.
Defendant's claim that his out-of-state conviction was not the equivalent of a NewYork felony is unpreserved and waived (People v Smith, 73 NY2d 961 [1989];People v Kelly, 65 AD3d886, 887 [1st Dept 2009], lv denied 13 NY3d 860 [2009]), and we declineto review it in the interest of justice. As an alternative holding, we also reject it on themerits. Resort to the foreign accusatory instrument is appropriate here (see People vGonzalez, 61 NY2d 586, 590 [1984]; see also People ex rel. Goldman vDenno, 9 NY2d 138, 140 [1961]), and it establishes the necessary equivalency. Theforeign statute criminalizes several acts, each of which constitutes a category of thefteven if not separately enumerated, as opposed to constituting mere ways of committingthe crime (compare People v Muniz, 74 NY2d 464, 468-469 [1989]).
Since defendant's challenge to his sentencing as a second felony offender lacks merit,counsel was not ineffective for failing to raise that claim (see Kelly, 65 AD3d at890). In any event, counsel's determination that there was no valid ground upon which tochallenge the second felony offender adjudication was within "the wide range ofprofessionally competent assistance" (Strickland v Washington, 466 US 668, 690[1984]).
The record does not establish a valid waiver of the right to appeal with respect to theexcessive sentence issue raised by defendant. We find the sentence excessive to theextent indicated. Concur—Andrias, J.P., Friedman, Sweeny, Saxe and Richter, JJ.[Prior Case History: 28 Misc 3d 1206(A), 2010 NY Slip Op 51162(U).]