| People v Agard |
| 2015 NY Slip Op 03401 [127 AD3d 602] |
| April 23, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Kenith Agard, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), forrespondent.
Order, Supreme Court, New York County (Renee A. White, J.), entered on or aboutSeptember 23, 2011, which denied defendant's CPL 440.20 motion to set aside hissentence, unanimously reversed, on the law, the motion granted and the matter remandedfor a new second violent felony offender adjudication and sentencing.
Defense counsel rendered ineffective assistance at the underlying sentencingproceeding by failing to ascertain that, in violation of People v Catu (4 NY3d 242 [2005]), defendant was notadvised about postrelease supervision at the time of his prior plea, and by failing tolitigate whether the Catu violation rendered the prior conviction unconstitutionalfor predicate felony purposes (see People v Fagan, 116 AD3d 451 [1st Dept 2014]).
The People take the position that, as a matter of law, the Catu error does notprevent the prior conviction from being used as a predicate felony, and that therefore itwould have been futile for sentencing counsel to have argued otherwise. In support ofthis position, the People assert that a Catu error is not a federal constitutionalviolation under CPL 400.15 (7) (b), and they also assert that such an error does not affectthe predicate status of the conviction in light of the [*2]retroactivity principle set forth in People vCatalonotte, 72 NY2d 641, 644-645 [1988]). However, these arguments areunpreserved (see People vSantiago, 91 AD3d 438, 439 [1st Dept 2012]), and we decline to address themerits of these issues on this appeal. Concur—Sweeny, J.P., Andrias,Manzanet-Daniels and Clark, JJ.