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People v. Kelly

September 8, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOHN C. KELLY, DEFENDANT-APPELLANT.



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 6 years, affirmed. Order, same court and Justice, entered on or about December 8, 2008, that denied defendant's motion pursuant to CPL 440.10 and 440.20 to vacate the judgment and set aside the sentence, affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Buckley, McGuire, Moskowitz, Acosta, JJ.

2207/07

On October 11, 2007, defendant appeared with counsel and pleaded guilty, pursuant to a plea agreement, to attempted robbery in the second degree. At the plea proceeding, defendant was adjudicated a second violent felony offender because of a prior Maryland conviction for the crime 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 a constitutional challenge to the Maryland conviction. The Clerk then arraigned defendant on the predicate violent felony statement that alleged, inter alia, that the Maryland conviction represented "an offense which includes all of the essential elements of a violent felony as that term is defined in Penal Law § 70.02."

On July 8, 2008, defendant moved, pursuant to CPL 440.10 and 440.20, to vacate his conviction and set aside his sentence, claiming that he was actually not a predicate violent felony offender, that he pleaded guilty under the mistaken belief he was and that his guilty plea was therefore involuntary. Defendant also claimed that his attorney was ineffective for not challenging his predicate violent felony adjudication at the plea proceeding.

Because defendant failed, during the plea proceedings, to raise the issue of whether the statute under which he was convicted in Maryland is the equivalent of a New York violent felony, defendant has waived that issue (People v Smith, 73 NY2d 961 [1989]). As the Court of Appeals noted in People v Samms (95 NY2d 52, 57 [2000]): "Determining whether a particular out-of-State conviction is the equivalent of a New York felony may involve 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. In keeping with the rule of preservation, issues of that type must be raised and explored at the trial court level, where a record is developed for appellate review" (internal citations omitted). Here, defendant pleaded guilty after a negotiated plea deal and declined the opportunity to challenge the prior Maryland conviction as the basis for the predicate violent felony. Because of the plea agreement, defendant received substantially less of a prison sentence than 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 because of defendant's belated argument that the Maryland conviction did not constitute a predicate violent felony under New York law.*fn1

As an alternative holding, we find that defendant was properly adjudicated a second violent felony offender. Defendant claims that the court should not have sentenced him as a second violent felony offender primarily because: (1) his out-of-state conviction in Maryland is not equivalent to a New York violent felony and (2) the People's predicate felony statement failed to set 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 who stands convicted of a violent felony offense . . . after having previously been subjected to a predicate violent felony conviction . . ." Penal Law § 70.04(1) (b) states: "For the purpose of determining whether a prior conviction is a predicate violent felony conviction the following criteria shall apply: (i) The conviction must have been . . . of an offense which 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 must examine the elements of the foreign statute and compare them to an analogous Penal Law felony" (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 but several acts which, if committed in New York, would in some cases be felonies and in others would 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 shall without the color of right forcibly abduct, take or carry away any child under the age of twelve years from the home or usual place of abode of such child, or from the custody and control of the parent or parents, or lawful guardian or guardians of such child, or be accessory thereto, or who shall without such color of right and against the consent of the parent or parents or lawful guardian or guardians of such child, persuade or entice from the usual place of abode or house of such child, or from the custody and control of the parent or parents, or guardian or guardians of such child, or be accessory thereto, or shall knowingly secrete or harbor such child, or be accessory thereto, with the intent to deprive such parent or parents, guardian or guardians, or any person who may be in lawful possession of such child, of the custody, care and control of such child, shall be guilty of a felony, and upon conviction shall suffer imprisonment in the penitentiary for a term not exceeding twenty years in the discretion of the Court." (Md. Ann. Code art 27, 92 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 the second 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 him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force."

Defendant's Maryland conviction easily qualifies as a New York felony. Maryland's former crime of abducting a child under 12 by forcibly taking a child from his or her home or parents is equivalent to the New York felony of second-degree kidnapping (see People v Antonio, 58 AD3d 515 [2009] [evidence was sufficient to support conviction for attempted second-degree kidnapping where defendant, in pursuit of frightened child, told bystander from whom child sought protection that he was child's father and reached out for her hand, evincing intent to restrain her]; People v Cassano, 254 AD2d 92, 93 [1998], lv denied 92 NY2d 1029 [1998] [defendant's actions in grabbing two-year-old child from custody of his uncle and walking swiftly into crowded street demonstrated intent to abduct victim sufficient for a conviction of attempted kidnapping in the second degree]).

To establish a predicate felony, Penal Law § 70.04 also requires that imposition of the sentence on the prior conviction be "not more than ten years before commission of the felony of which the defendant presently stands convicted." It further provides that in calculating the ten-year period "any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods 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 prior sentence was imposed within the ten-year limitation. Instead, he contends that the predicate violent felony statement the People filed was facially defective because the Maryland conviction the statement identifies occurred more than ten years before the present felony, and the statement does not set forth a term of incarceration that could be used to toll the ten-year limitation period. However, defendant failed to raise the claim that the predicate felony statement was facially insufficient because it omitted tolling information at the time of his original predicate felony adjudication. Thus, this claim is unpreserved for review (People v Ross, 7 NY3d 905 [2006]; People v Smith, 73 NY2d 961 [1989]; People v Bouyea, 64 NY2d 1140 [1985]). Moreover, as the record reflects that ...


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