Defendant, Raymond Medina, moves, pursuant to CPL §440.20, to set aside the sentence imposed upon him for his 2011 conviction of Attempted Assault in the First Degree (PL §110/120.10) and to resentence him as a first felony offender. Defendant claims that he was improperly sentenced as a second violent felony offender because of a 2000 Florida conviction for "aggravated battery" which he maintains cannot serve as a predicate felony in New York. In the alternative, he requests oral arguments to determine the merits of his claim.

Procedural History

On November 9, 2009, the grand jury of Bronx County charged Defendant with Attempted Murder in the Second Degree (PL §110/125.25), Assault in the First Degree (PL [*2]§120.10), two counts of Assault in the Second Degree (PL §120.05), Assault in the Third Degree (PL §120.00) and Criminal Possession of a Weapon in the Fourth Degree (PL §265.01).

On June 1, 2011, Defendant pled guilty to Attempted Assault in the First Degree (PL §110/120.10). During the plea allocution the Court informed Defendant that he would be sentenced as a second violent felony offender to seven (7) years in prison and five (5) years post release supervision. The Court asked Defendant if he understood the terms of the negotiated plea and Defendant answered that he understood. Defendant also waived his right to appeal as part of the negotiated plea deal.

On June 16, 2011, before sentencing, Defendant was adjudicated a second violent felony offender. The Clerk read the second violent felony information which stated that on July 17, 2000, Defendant was convicted of Aggravated Battery (FSA 784.045[1][a] 1 and 2) and sentenced to seven years in jail. The Clerk inquired whether Defendant wished to challenge the factual nature or constitutionality of the statement. Defendant answered in the negative. The Court thereupon adjudicated him as a second violent felony offender and sentenced him as promised.

Defendant's Position

Defendant, by way of counsel, moves to set aside his sentence and be resentenced as a first felony offender. He claims that he was improperly sentenced as a second violent felony offender because his Florida Aggravated Battery conviction cannot serve as a predicate felony in New York State. Defendant argues that Florida's Aggravated Battery Statute proscribes broader conduct than its New York counterparts and is not equivalent to any New York felony. Defendant cites People v. Sailor, 65 NY2d 224, 237 (1985), which states that to be a valid predicate," the out of state conviction must be for an offense which if committed in New York would be a felony." Additionally, if the elements of a foreign statute are broader than its New York counterpart, a conviction under the foreign statute cannot serve as a predicate in New York (People v. Muniz, 74 NY2d 464[1989]). Florida Statute 784.045(1)(a) 1 and 2 reads as follows:

(1)(a) A person commits aggravated battery who in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or

2. Uses deadly weapon.

In his reply, Defendant also maintains that, contrary to the People's position, he should not be barred from raising his present claim because he failed to raise it when he was adjudicated a second violent felony offender at the time of sentencing. Defendant relies on People v. DeAga, 74 AD3d 552 (1st Dept 2010), in which the First Department found that a defendant was improperly adjudicated a second violent felony offender based on a New Jersey conviction of aggravated assault that did not qualify as a New York felony. Although the issue was unpreserved for review, the First Department reached it in the interest of justice, vacating the plea and remanding for further proceedings.

People's Position

The People argue that Defendant waived the equivalency issue when he declined the opportunity to challenge the Florida conviction at sentencing. The People cite People v. Kelly (65 AD3d 886, 887 [1st Dept 2009]) for the holding that "[b]ecause defendant failed, during the plea proceedings, to raise the issue of whether the statute under which he was convicted [out of state] is the equivalent of a New York violent felony, defendant has waived that issue." The People maintain that where a defendant negotiates and accepts a plea deal, having declined the opportunity to challenge the predicate violent felony, a belated argument on that issue will not set aside the bargain. This is because "[d]etermining 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 (citations omitted). 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." (People v. Samms, 95 NY2d 52, 57 [2000]).

Furthermore, the People contend that even if the Court were to reach the merits of Defendant's claim, his Florida conviction is a suitable violent predicate felony in that it is equivalent to the New York felony of Assault in the Second Degree (PL §120.05[1], [2]) because the two statutes share the same essential elements. Penal Law §120.05(1), (2) reads as follows:

A person is guilty of assault in the second degree when: 1. with intent to cause serious physical injury to another person, he cause such injury to such person or to a third person; or 2. with intent to cause physical injury to another person, causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.

A motion to set aside a sentence pursuant to CPL §440.20 applies to a sentence which is unauthorized, illegally imposed or otherwise invalid as a matter of law (CPL §440.20[1]). The [*4]motion deals solely with the sentence and has no affect upon the underlying conviction (CPL §440.20[4]).

An examination of the stenographic minutes of Defendant's plea and sentencing indicates that he was given the opportunity to challenge his adjudication as a second violent felony offender at both plea and sentence and did not do so. Defendant "failed to timely raise the issue of whether he was properly sentenced as a second felony offender by not controverting the allegations in the predicate statement." (People v. Smith, 73 NY2d 961, 962-963 [1989]). By not challenging whether his out of state conviction was a proper predicate when given the opportunity to do so, the issue is unpreserved and waived (People v. Jurgins, 107 AD3d 595 [1st Dept 2013]). The Court, "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 [out of state] conviction did not constitute a predicate violent felony under New York law." (Kelly, supra at 887).

Moreover, in the case at bar, Defendant received a favorable disposition. Defendant, pled guilty to Attempted Assault in the First Degree (PL §110/120.10), a class C violent felony. The top count of the indictment was Attempted Murder in the Second Degree, a class B violent felony. As part of the negotiated plea, Defendant was sentenced to seven years imprisonment plus five years post release supervision, the minimum allowable.

Although there are a number of cases in which the issue of equivalency is unpreserved, but nevertheless, the First Department reached it in the interest of justice, in the majority of those cases, unlike the instant case, the People conceded that the out of state conviction was an improper predicate for the purpose of enhanced sentencing (see People v. Fletcher, 98 AD3d 899 [1st Dept 2012]; People v. Marino, 81 AD3d 426, 427 [1st Dept 2011]; People v. Candelario, 183 AD2d 440 [1st Dept 1991]; but see People v. De Aga, 74 AD3d 552 [1st Dept 2010]). In De Aga, a defendant was improperly adjudicated a second violent felony offender based on New Jersey conviction of aggravated assault. While the issue was unpreserved for review, the First Department reached it in the interest of justice. Although Defendant compares the present case to De Aga, the cases are distinguishable in that De Aga involves a New Jersey statute whose elements are different from the Florida statute at issue here. Moreover, in De Aga reference was not made to the accusatory instrument to resolve the issue of equivalency because in that case, "[d]efendant's New Jersey indictment does not establish that he committed a New York felony, and while the New Jersey complaint provides more information, it was superseded by the indictment and therefore may not be used to resolve this issue." (Id. at 553).

Alternatively, even if Defendant had not waived the right to controvert his second violent felony status, his challenge would be denied. PL §70.04(1)(b)(i), the second violent felony statute requires that the prior out of state conviction be for the equivalent of a violent felony offense, committed in another jurisdiction, if a sentence of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state. In order for an out of state conviction to qualify as a predicate felony, "the statute requires that the conviction be for a crime whose elements are equivalent to those of a New York felony." (People v.Gonzalez, 61 NY2d 586, 589 [1984]). If the comparison of the statutes indicates that the Florida offense would not be a felony in New York, the offense does not qualify as a predicate even if the acts specified in [*5]the foreign accusatory instrument would constitute a felony in New York (People v. Olah, 300 NY 96 [1949]). However, "[a]s an exception to the Olah rule we have permitted a sentencing court to go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction where the statute renders criminal not one act but several acts which if committed in New York, would be in some cases be felonies and in others would constitute only misdemeanors." (Gonzalez at 590). The acts alleged in the foreign accusatory instrument must then be compared with the New York felony statutes. "If the indictment charges an act or acts which would necessarily be felonies in the [New York] State, the resulting conviction will be considered conviction of a felony." (People ex rel Goldman v. Denno, 9 NY2d 138, 140 [1960]; William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law §60.00).

As stated in Gonzalez, "the allegations of the accusatory may be referred to when necessary to clarify the statutory charge, to limit or narrow the basis for the conviction, but they may not be used to enlarge or expand the crime charged." (Id. at 591). Here, since the Florida statute delineates several different acts, reference may be made to the accusatory instrument that describes the particular acts underlying the charge to isolate and identify the crime of which Defendant was accused. The Florida accusatory instrument in the instant case reads in pertinent part:

1.) AGGRAVATED BATTERY (DEADLY WEAPON BODILY HARM)

Raymond Medina on or about April 11, 1999, in the County of Palm Beach and State of Florida, did actually and intentionally touch or strike Eddie Mendoza against the will of Eddie Mendoza and in doing so used a knife, a deadly weapon and/or in doing so intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement.

The acts in the Florida accusatory instrument are at least equivalent to Assault in the Second Degree (PL §120.05[2]) whereby a person "with intent to cause physical injury ^[FN2] to another person, causes such injury to such person ... by means of a deadly weapon or dangerous instrument. Thus the Florida conviction properly was considered a predicate felony for sentencing purposes in this case. Further oral argument is unnecessary.

Accordingly, the motion is, in all respects, hereby denied.

This constitutes the decision and order of the Court.

November 8, 2013______________________________[*6]Dominic R. Massaro, JSC