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Pursuant to CPL § 440.20(1), a motion to set aside a sentence may be made at any time after the entry of a judgment

Defendant was indicted on twelve charges, including one count of Robbery in the First Degree, PL 160.15(3); two counts of Robbery in the Second Degree, PL 160.15(1) and (2)(a); one count of Robbery in the Third Degree, PL 160.05; one count of Grand larceny in the Fourth Degree, PL 155.30(5); one count of Assault in the First Degree, PL 120.10(1); and three counts of Assault in the Second Degree, PL 120.05(1) and (2) and (6), as well as several misdemeanors, in connection with an incident, on or about May 1, 2008, in which Defendant is charged with having assaulted a livery cab driver in his vehicle, having wielded a knife, and having robbed the cabdriver.

A Bronx County Criminal Lawyer said that while the jury selection process for Defendant’s trial was underway, Defendant pleaded guilty, pursuant to a negotiated plea agreement, to one count of Robbery in the First Degree, a class B felony, to satisfy all of the charges pending against him. The Court informed Defendant that, if he adhered to certain conditions that were articulated by the Court, one of which required the Defendant to cooperate with the Department of Probation, the Court would sentence Defendant to a determinate sentence of eleven years in state prison, and five years of post-release supervision, a permanent order of protection and certain mandatory surcharges. The Court informed Defendant that “cooperate” in that context meant that Defendant could not swear to certain facts under oath in court and then deny those same facts to Probation during his pre-sentence interview. This is not burglary.

The Court also informed Defendant that, if he did not comply with the articulated conditions, the Court would then sentence Defendant to 25 years. Defendant acknowledged on the record that he understood those conditions.

At the plea proceeding, Defendant was adjudicated a second felony offender as result of a conviction incurred by Defendant in Washington, D.C. for Attempt to Commit Robbery. At the plea proceeding, the People had filed with the Court a “Second Felony Information,” which contends that Defendant had been convicted of Attempt to Commit Robbery in Washington, D.C., and that Defendant was sentenced to 14 to 42 months incarceration for that offense.

According to the People, Defendant’s D.C. conviction constitutes a predicate felony for purposes of Penal Law § 70.06. On that same date, Defendant was informed that he had a right to challenge the Second Felony Information and that any failure to challenge the statement at that time was a waiver of that right. Defendant conferred with his attorney, then stated that he understood. Defendant was advised that he could dispute the People’s contention that Defendant is the person who was convicted of that out-of-state crime and challenge the constitutionality of that prior conviction. In open court, Defendant admitted to being the person convicted of the D.C. crime and indicated that he waived his right to challenge the D.C. conviction as unconstitutional. Defendant did not challenge the Second Felony Information or dispute in any way the People’s contention that the D.C. conviction constituted a predicate felony. The Court then adjudicated Defendant a predicate felon.

Thereafter, defendant filed a motion seeking to withdraw his guilty plea, contending that he is innocent of the charges and that his guilty plea was involuntary in that, at the time of the plea, he was under duress, had significant psychological stress due to his wife’s ongoing cancer treatment, and had ineffective assistance of counsel. Defendant’s motion to withdraw his plea was denied in its entirety.

On the date of sentencing, the Court determined that Defendant had violated one of the conditions of the sentence promise-specifically, Defendant, after having averred to facts that established Defendant’s guilt for the crime of Robbery in the First Degree in Court, denied the same facts to Probation. Noting that Defendant had not complied with the required conditions to obtain the lower sentence, the Court sentenced Defendant to a determinate sentence of 25 years incarceration in state prison, and five years of post-release supervision, issued a permanent order of protection on behalf of the Complainant as against Defendant, and imposed certain mandatory surcharges.

Thereafter, Defendant filed two more motions, both pro se. Defendant sought transcripts of his sentencing in this case. The Court deemed Defendant’s letter to be a pro se motion to obtain, without cost, a transcript of the sentence proceeding. Defendant sought to have this Court set aside Defendant’s sentence. Both motions were denied in their entirety.

Defendant, filed a motion seeking an order setting aside Defendant’s sentence and re-sentencing Defendant. Defendant contends that he was improperly sentenced as a second felony offender because his D.C. conviction does not qualify as a predicate felony for sentencing purposes under New York law. Defendant also contends that his trial counsel was ineffective for failing to investigate whether the D.C. conviction qualified as a predicate felony and for failing to challenge it.

Pursuant to CPL § 440.20(1), a motion to set aside a sentence may be made at any time after the entry of a judgment. Upon motion of a defendant, the court in which the judgment was entered may set aside the sentence on the grounds that it was unauthorized, illegally imposed or otherwise invalid as a matter of law.

In this case, the Court finds no merit to Defendant’s contention that the sentence imposed by this Court is illegal in that he was improperly sentenced as a second felony offender. As set forth below, Defendant’s contention that his D.C. conviction for Attempt to Commit Robbery does not qualify as a predicate felony conviction under New York’s second felony offender statute is wrong.

Accordingly, as set forth further below, Defendant’s motion is denied. As an initial matter, the Court notes that Defendant waived any right he may have had to challenge the Court’s determination that the D.C. conviction constitutes a predicate felony when he failed to make any such challenge of the Court’s adjudication of Defendant as a predicate felon, or the date of sentencing. Second, even if Defendant had not waived any right to challenge the issue, such challenge would be unavailing; Defendant’s D.C. conviction qualifies as a predicate felony under New York law. Defendant’s contention that his trial counsel was ineffective for failing to challenge his predicate felony adjudication at the time of his plea proceeding also is without merit.

Defendant is barred from challenging the validity of his status as a predicate felon at this time. Defendant had the opportunity to challenge the People’s claim that his guilty plea to the offense at issue here constituted his second felony offense due to Defendant’s D.C. conviction. By failing to challenge the issue at the time that he pleaded guilty, Defendant waived the right to challenge whether he was properly adjudicated a second felony offender.

In this case, Defendant pleaded guilty after a negotiated plea agreement, which included a determination of Defendant as a second felony offender and a sentence promise, conditioned upon certain things, of a determinate sentence of eleven years in prison and five years of post-release supervision—a significantly lower sentence than Defendant could have received if found guilty after trial. The plea agreement also included Defendant’s acknowledgment that he would receive 25 years incarceration if he failed to meet the conditions set by the Court.

There can be no dispute that Defendant’s decision not to object to the People’s contention that he be adjudicated a second felony offender was part and parcel of the negotiated agreement; the agreed-upon sentence—eight plus three—is the minimum allowable sentence for a second felony offender for that crime. In fact, the People contended, both at the time of the plea and the sentencing, that, had the case gone to trial, they would have sought persistent felony offender status which, if granted, could have exposed Defendant to a life sentence.

In this case, Defendant made a decision to forego his right to a trial to avoid the uncertainty of an outcome in exchange for a negotiated sentence—the proposed eleven year sentence that Defendant would have received had he met the requisite conditions under the plea agreement and a 25 year sentence if he did not. In addition, the negotiated sentence was very favorable in light of the charges facing Defendant—that he lacerated the liver of a cab driver during a robbery with a knife—and Defendant’s criminal history of felony convictions in New York and elsewhere.

Defendant should not now be able to subvert this negotiated plea by claiming that the D.C. conviction was not a valid predicate felony simply because he failed to meet the requisite conditions to obtain the most favorable promised sentence.

Moreover, Defendant had the opportunity to challenge his adjudication as a second felony offender and did not do so. In fact, counsel who represented Defendant at the plea proceeding has averred, in connection with this matter, that she investigated the question of whether the alleged predicate felony was a valid predicate under New York law, and found no grounds to challenge it.

At the plea proceeding, Defendant was arraigned on the predicate felony information, which identified the D.C. conviction, and, after conferring with his attorney, Defendant expressly declined to challenge the use of this conviction as a predicate felony on either constitutional grounds or on the grounds that he was not the person named in the second felony information. Defendant raised no challenge to the Court’s adjudication of him as a second felony offender based on the D.C. conviction, either at that time or at sentencing.

Defendant’s decision not to contest his adjudication as a second felony offender and his failure to raise the issue of whether the D.C. conviction is the equivalent of a New York felony at the time of his plea proceeding precludes him from doing so now. Accordingly, Defendant’s motion to set aside his sentence is denied.

Even if Defendant had not waived his right to challenge his status as a second felony offender, Defendant’s motion to set aside his sentence still would be denied. Contrary to Defendant’s contention, as set forth further below, the statute under which Defendant was convicted. Thus, Defendant’s D.C. conviction constitutes a valid predicate felony under New York law.

For the reasons set forth above, Defendant’s motion to set aside his sentence is denied.

Cases involving grand larceny are one of the field of expertise of our Bronx County Criminal attorneys here in Stephen Bilkis and Associates. If you have problems involving the aforementioned cases, call us now.

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