Opinion
12-01-2016
PEOPLE of the State of New York, Respondent, v. Weston COOTE, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman of counsel) and Kirkland & Ellis LLP, New York (Shireen A. Barday of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman of counsel) and Kirkland & Ellis LLP, New York (Shireen A. Barday of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.
Order, Supreme Court, New York County (Michael R. Sonberg, J.), entered December 16, 2014, which denied defendant's CPL 440.20 motion to set aside his sentence as a second violent felony offender and to be resentenced as a first felony offender, unanimously affirmed.
Supreme Court correctly determined that defendant's CPL 440.20 motion was procedurally barred by this Court's prior affirmance, on the merits, of defendant's 2010 conviction and his adjudication as a second violent felony offender (CPL 440.20[2] ; 110 A.D.3d 485, 972 N.Y.S.2d 263 [1st Dept.2013], lv. denied 22 N.Y.3d 1198, 986 N.Y.S.2d 418, 9 N.E.3d 913 [2014] ). Defendant's submission of additional evidence in support of his argument that his prior conviction 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) does not constitute new grounds under CPL 440.20(2).
Moreover, on its merits, defendant's claim is unavailing in light of People v. Smith, 28 N.Y.3d 191, 43 N.Y.S.3d 771, 66 N.E.3d 641, 2016 N.Y. Slip Op. 07106, 2016 WL 6427745 (2016) (Catu not to be retroactively applied in predicate felony offender adjudication).
FRIEDMAN, J.P., SAXE, MOSKOWITZ, GISCHE, KAHN, JJ., concur.