| People v Fagan |
| 2014 NY Slip Op 02344 [116 AD3d 451] |
| April 3, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Keith Fagan, Appellant. |
—[*1] Keith Fagan, appellant pro se. Robert T. Johnson, District Attorney, Bronx (Clara Salzberg of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (George R. Villegas, J.), rendered July 6,2010, convicting defendant, upon his plea of guilty, of attempted robbery in the firstdegree, and sentencing him, as a persistent violent felony offender, to a term of 18 yearsto life, unanimously modified, on the law, to the extent of vacating the sentence andremanding for resentencing in accordance with this decision, and otherwise affirmed.Order, same court and Justice, entered July 3, 2013, which denied defendant's CPL440.20 motion to set aside his sentence, unanimously reversed, on the law, and themotion granted as indicated above.
Under the circumstances of the case, defense counsel rendered ineffective assistanceat the July 6, 2010 sentencing proceeding when he failed to challenge theconstitutionality of defendant's 2000 New York County conviction, which was used as apredicate conviction in adjudicating defendant a persistent violent felony offender(see CPL 400.15 [7] [b]; 400.16 [2]). It is undisputed that at his 2000 pleaproceeding, defendant was not advised that his sentence would include postreleasesupervision (see People vCatu, 4 NY3d 242 [2005]).
In connection with the 2000 conviction, Supreme Court, New York County addedpostrelease supervision to the sentence in 2009 to cure an unlawful administrativeimposition of PRS (see People vSparber, 10 NY3d 457 [2008]). In May 2010 that court removed PRS from thesentence in accordance with People v Williams (14 NY3d 198 [2010]). Contrary to thePeople's sole argument on appeal addressing the Catu issue, the vacatur ofdefendant's PRS could not cure the Catu error, or give defendant the benefit ofhis plea, since at the time of the vacatur he had already served four years of PRS, and hadalso spent time in jail in violation of that supervision. Accordingly, neither Penal Law§ 70.85 nor People vPignataro (22 NY3d 381 [2013]) has any applicability to the issues here.
In connection with the instant CPL 440.20 motion, the attorney who representeddefendant at his 2010 persistent violent felony offender adjudication and sentencingacknowledged that he had no strategic reason for failing to challenge the 2000conviction, and [*2]that he never inquired into whetherdefendant had been advised about PRS at his 2000 plea proceeding. He further affirmedthat had he been aware that the conviction was obtained in violation of Catu, hewould have in fact challenged its use to enhance defendant's sentence in this case. Thus,this was not a case where an attorney may have reasonably believed that it would havebeen futile to raise a Catu issue regarding the constitutionality, for predicatefelony purposes, of defendant's 2000 conviction, or that the law was unclear on this issue(see People v Catalanotte, 72 NY2d 641, 644-645 [1988], cert denied493 US 811 [1989]; seealso People v Alvarado, 67 AD3d 430, 431 [2009], lv denied 13 NY3d936 [2010]; People v Menjivar, 9 Misc 3d 1108[A], 2005 NY Slip Op 51451[U][Sup Ct, Queens County 2005]). Instead, failure to raise the issue was the product of alack of investigation (see People v Droz, 39 NY2d 457, 462 [1976]).Accordingly, defendant is entitled to have his persistent felony offender status litigatedwith proper assistance of counsel, at a new adjudication and sentencing.
Turning to issues raised on defendant's direct appeal from his 2010 judgment ofconviction, we find that defendant's purported waiver of his right to appeal was invalid(see People v Braithwaite,73 AD3d 656 [1st Dept 2010], lv denied 15 NY3d 849 [2010]). However,defendant's excessive sentence claim is academic because we are ordering a plenarysentencing proceeding, and his pro se claims are without merit. Concur—Tom,J.P., Acosta, Saxe, DeGrasse and Freedman, JJ.