Summary
In Agard, the Court again vacated the Defendant's sentence based on defense counsel's ineffective assistance in not challenging a pre-Catu predicate sentence in which PRS was not pronounced which was then used to enhance the Defendant's instant sentence.
Summary of this case from People v. DennisOpinion
2015-04-23
The PEOPLE of the State of New York, Respondent, v. Kenith AGARD, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), for respondent.
SWEENY, J.P., ANDRIAS, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, New York County (Renee A. White, J.), entered on or about September 23, 2011, which denied defendant's CPL 440.20 motion to set aside his sentence, unanimously reversed, on the law, the motion granted and the matter remanded for a new second violent felony offender adjudication and sentencing.
Defense counsel rendered ineffective assistance at the underlying sentencing proceeding by failing to ascertain that, in violation of People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 (2005), defendant was not advised about postrelease supervision at the time of his prior plea, and by failing to litigate whether the Catu violation rendered the prior conviction unconstitutional for predicate felony purposes ( see People v. Fagan, 116 A.D.3d 451, 983 N.Y.S.2d 28 [1st Dept.2014] ).
The People take the position that, as a matter of law, the Catu error does not prevent the prior conviction from being used as a predicate felony, and that therefore it would have been futile for sentencing counsel to have argued otherwise. In support of this position, the People assert that a Catu error is not a federal constitutional violation under CPL 400.15(7)(b), and they also assert that such an error does not affect the predicate status of the conviction in light of the retroactivity principle set forth in People v. Catalonotte, 72 N.Y.2d 641, 644–645, 536 N.Y.S.2d 16, 532 N.E.2d 1244 (1988). However, these arguments are unpreserved ( see People v. Santiago, 91 A.D.3d 438, 439, 936 N.Y.S.2d 37 [1st Dept.2012] ), and we decline to address the merits of these issues on this appeal.