| People v Fagan |
| 2015 NY Slip Op 08782 [134 AD3d 411] |
| December 1, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Keith Fagan, Respondent. |
Robert T. Johnson, District Attorney, Bronx (Clara Salzberg of counsel), forappellant.
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot ofcounsel), for respondent.
Judgment of resentence, Supreme Court, Bronx County (George R. Villegas, J.),rendered on or about May 21, 2014, resentencing defendant, as a second violent felonyoffender, to a term of 15 years, and order, same court and Justice, entered on or aboutFebruary 13, 2015, which denied the People's CPL 440.40 motion to set aside thejudgment of resentence, unanimously affirmed.
Defendant previously appealed from the underlying judgment of the same court andJustice, rendered July 6, 2010, convicting him, upon his plea of guilty, of attemptedrobbery in the first degree, and sentencing him, as a persistent violent felony offender, toa term of 18 years to life, and an order of the same court and Justice, entered July 3,2013, which denied his CPL 440.20 motion to set aside his sentence. This Courtunanimously modified the judgment to the extent of vacating the sentence and remandingfor resentencing, and otherwise affirmed the judgment, reversed the order, and granteddefendant's motion (see 116 AD3d 451 [1st Dept 2014]). This Court agreed withdefendant's argument that his counsel rendered ineffective assistance by failing tochallenge the constitutionality of his 2000 New York County conviction, which was usedas a predicate felony in adjudicating defendant a persistent violent felony offender, since"[i]t is undisputed that at his 2000 plea proceeding, defendant was not advised that hissentence would include postrelease supervision" (id. at 451, citing People v Catu, 4 NY3d242 [2005]).
At a resentencing proceeding on remand from this Court's prior order, the courtrejected the People's argument that defendant should remain a persistent violent felonyoffender in light of the 2000 conviction. Instead, the court adjudicated defendant asecond violent felony offender based solely on a 1980 conviction. The Peoplesubsequently moved pursuant to CPL 440.40 to set aside the judgment of resentence. Thecourt denied the motion, and the People appeal from that order and the judgment ofresentence.
CPL 400.15 (7) (b) provides: "A previous conviction . . . which wasobtained in violation of the rights of the defendant under the applicable provisions of theconstitution of the United States must not be counted in determining whether thedefendant has been subjected to a predicate violent felony conviction." The People'sargument that a Catu error does not violate the United States Constitution isimproperly raised for the first time in their reply brief, and is without merit in anyevent.
"[A] conviction obtained in violation of Catu implicates rights under thefederal Constitution as well as the state constitution" (People v Smith, 132 AD3d 511, 511 [1st Dept 2015]).Furthermore, although the Catu error in this case occurred in 2000, prior to the2005 Catu decision, Catu applies retroactively (id.).
Defendant's 2000 conviction was unconstitutionally obtained for purposes of its useas a predicate felony. Although the 2000 sentencing court also failed to include postrelease supervision (PRS) in its oral [*2]pronouncement of sentence (see People v Sparber, 10 NY3d457 [2008]), there was nevertheless a Catu error, because PRS was addedadministratively (albeit also illegally), and defendant served more than four years of PRS,as well as being jailed for a violation thereof. The Catu error was not cured bysubsequent events (see Fagan, 116 AD3d at 451), in which a PRS term wasimposed judicially in 2009, and then removed in 2010 pursuant to People v Williams (14 NY3d198, 219-220 [2010], cert denied 562 US 947 [2010]).
The motion court improperly invoked CPL 440.40 (2) in finding that this Court'sprior order constituted a binding determination that defendant's 2000 conviction wasobtained in violation of Catu and thus could not be used to enhance defendant'ssentence. This Court's prior order did not decide that issue on the merits (see People v Lara, 130 AD3d463, 465 [1st Dept 2015]). However, this error regarding CPL 440.40 (2) isacademic in light of the foregoing discussion. Concur—Mazzarelli, J.P.,Moskowitz, Richter and Manzanet-Daniels, JJ.
Motion to strike the People's reply brief granted to the extent of striking the argumentraised for the first time therein, as indicated, and otherwise denied.