PEOPLE v. OQUENDO (2026)

Judgments, Supreme Court, New York County (April A. Newbauer, J. at July 6, 2023 plea and sentencing;  Steven M. Statsinger, J. at September 26, 2023 plea), rendered October 19, 2023, convicting defendant, upon his pleas of guilty, of attempted robbery in the second degree and attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second violent felony offender, to a term of five years, and as a second felony drug offender with a prior violent felony conviction, to a concurrent term of five years, respectively;  and order, same court (April A. Newbauer, J.), entered on or about September 23, 2025, which denied defendant's motion to set aside the sentences pursuant to CPL 440.20, unanimously affirmed.

Defendant waived his argument that pursuant to Erlinger v. United States, 602 U.S. 821, 144 S.Ct. 1840, 219 L.Ed.2d 451 (2024), he was entitled to a jury determination regarding whether tolling for periods of incarceration brought his predicate violent felony conviction within the 10–year lookback period provided for in Penal Law §§ 70.04(1)(b)(iv)-(v), because he freely admitted to the tolling periods set forth in the second violent felony offender statement and the predicate felony statement (see People v. Gomez, 236 A.D.3d 603, 604–605, 230 N.Y.S.3d 247 [1st Dept. 2025], lv denied 43 N.Y.3d 1045, 236 N.Y.S.3d 622, 263 N.E.3d 879 [2025] ).  Moreover, this Court has decided that Erlinger does not apply to New York's tolling provision (see People v. Young, ––– A.D.3d ––––, –––– – ––––, 254 N.Y.S.3d 91 [1st Dept. 2026] ).  In any event, any error would be harmless (see People v. Pleasant, 249 A.D.3d 619, 620, 255 N.Y.S.3d 267 [1st Dept. 2026];  Gomez, 236 A.D.3d at 605, 230 N.Y.S.3d 247).

We have considered defendant's remaining contentions and find them unavailing.