Opinion
06-06-2017
The PEOPLE of the State of New York, Respondent, v. Kenith AGARD, Defendant–Appellant. The People of the State of New York, Appellant, v. Kenith Agard, Defendant–Respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant/respondent. Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan and Vincent Rivellese of counsel), for respondent/appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant/respondent.
Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan and Vincent Rivellese of counsel), for respondent/appellant.
Judgment of resentence, Supreme Court, New York County (Melissa C. Jackson, J.), rendered August 31, 2015, resentencing defendant, as a second felony offender, to consecutive terms of 12 years and 2 to 4 years, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and substituting a second violent felony offender adjudication, and otherwise affirmed.
Upon our remand for a new second violent felony offender adjudication and sentencing (127 A.D.3d 602, 8 N.Y.S.3d 125 [1st Dept.2015] ), the resentencing court determined that defendant's predicate violent felony conviction, which was obtained in violation of People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 (2005), could not be used to enhance defendant's sentence, and it adjudicated him a second (nonviolent) felony offender on the basis of another predicate conviction, while reimposing defendant's original sentence. However, as defendant concedes, the subsequent decision of the Court of Appeals in People v. Smith, 28 N.Y.3d 191, 43 N.Y.S.3d 771, 66 N.E.3d 641 (2016) precludes retroactive application of Catu to invalidate a sentence enhancement. Accordingly, defendant's original adjudication as a second violent felony offender was lawful.
As for defendant's appeal, we perceive no basis for reducing the sentence.
RENWICK, J.P., RICHTER, FEINMAN, GISCHE, KAHN, JJ., concur.