The People, Appellant,v.Keith Fagan, Respondent.

Brief

N.Y.September 13, 2016

Argued by CLARA H. SALZBERG (15 minutes requested) ______________________________________________________________________ Court of Appeals STATE OF NEW YORK ╶───╴ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - KEITH FAGAN, Defendant-Respondent __________________________________________________________________ APPELLANT’S BRIEF _____________________________________________________________________________ DARCEL D. CLARK District Attorney Bronx County Attorney for Appellant 198 East 161st Street Bronx, New York 10451 (718) 838-7101; Fax (718) 590-6523 NANCY D. KILLIAN JUSTIN J. BRAUN CLARA H. SALZBERG Assistant District Attorneys Of Counsel Date Completed: June 9, 2016 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii STATEMENT……………………………………………………………………...1 QUESTIONS PRESENTED……………………………………………………….2 SUMMARY OF ARGUMENT…………………………………………………….2 THE FACTS………………………………………………………………………..3 The 2000 New York County Judgment………………………………3 The 2009 Bronx County Indictment………………………………….4 The Plea……………………………………………………………….4 The Sentence………………………………………………………….6 Defendant’s CPL § 440.20 Motion…………………………………...7 The First Appeal………………………………………………………9 The Resentencing Proceeding……………………………………….10 The People’s CPL § 440.40 Motion…………………………………11 The Second Appeal………………………………………………….13 ARGUMENT……………………………………………………………………...14 POINT ONE…………………………………………………………14 Even If People V. Catu, 4 N.Y.3d 242 (2005), Applies To Defendant’s Predicate Conviction (See Infra, Point Two), The Prs Defect Was Cured By Defendant’s Subsequent i Resentencing Pursuant To Penal Law § 70.85 And Does Not, Therefore, Foreclose The Use Of The Predicate Conviction In A Subsequent Persistent Violent Felony Statement. POINT TWO………………………………………………………...21 Catu Does Not Retroactively Apply To Defendant’s 2000 Guilty Plea In The First Instance. CONCLUSION…………………………………………………………………...28 ii TABLE OF AUTHORITIES FEDERAL CASES Desist v. United States, 394 U.S. 244 (1969)……………………………………..23 Mapp v. Ohio, 367 U.S. 643 (1961)………………………………………………..6 New York v. Williams, Petition for a Writ of Certiorari, Supreme Court of the United States, No. 09-1425, 2010 WL 213037 (US) (Appellate Petition, Motion and Filing) (May 21, 2010)………………………………………..19 Padilla v. Kentucky, 130 S.Ct. 1473 (2010)………………………………………27 Sanchez v. Keller, No. 06-Civ-3370, 2007 WL 4927791 (S.D.N.Y. 2007)………22 Shabazz v. Perlman, No. 04-Civ-4355, 2005 WL 2105533 (S.D.N.Y. 2005)……22 Teague v. Lane, 489 U.S. 288 (1989)……………………………………………..26 United States v. Wade, 388 U.S. 218 (1967)……………………………………….6 NEW YORK STATE CASES Garner v. New York State Dep’t of Corr. Servs., 10 N.Y.3d 358 (2008)……..17, 25 People v. Acevedo, 17 N.Y.3d 297 (2011)…………………………5, 10, 15, 16, 18 People v. Acevedo, 75 A.D.3d 255 (1st Dept. 2010)……………………………….5 People v. Agard, 127 A.D.3d 602 (1st Dept. 2015)………………………………15 People v. Ballinger, 12 A.D.3d 686 (2nd Dept. 2004)……………………………24 People v. Baret, 23 N.Y.3d 777 (2014)…………………………….................26, 27 People v. Beaty, 22 N.Y.3d 490 (2014)…………………………………………...25 iii People v. Bond, 2016 Slip Op. 26101 (Sup. Ct. Bronx Co. 2016)………………..20 People v. Bonilla, 6 A.D.3d 1059 (4th Dept. 2004)………………………………24 People v. Boyd, 12 N.Y.3d 390 (2009)……………………………………………25 People v. Boyer, 22 N.Y.3d 15 (2013)…………………………5, 10, 11, 15, 16, 18 People v. Brewington, 127 A.D.3d 1248 (3rd Dept. 2015)……………………….15 People v. Catalanotte 72 N.Y.2d 641, 643 (1988)……………………..3, 12, 21, 22 People v. Catu, 4 N.Y.3d 242 (2005)………………………………………...passim People v. Cintron, 22 N.Y.3d 757 (2014)………………………………………...25 People v. Collier, 22 N.Y.3d 429 (2013)………………………………………….25 People v. Cornell, 16 N.Y.3d 801 (2011)…………………………………………25 People v. Crowder, 24 N.Y.3d 1134 (2015)………………………………………24 People v. Eastman, 85 N.Y.2d 265 (1995)………………………………………..27 People v. Fagan, 116 A.D.3d 451 (1st Dept. 2014)………………………..9, 10, 14 People v. Fagan, 134 A.D.3d 411 (1st Dept. 2015)…………………………..13, 15 People v. Goss, 286 A.D.2d 180 (3rd Dept. 2001)………………………………..24 People v. Hill, 9 N.Y.3d 189 (2007)………………………………………………25 People v. Huntley, 15 N.Y.2d 72 (1965)…………………………………………...6 People v. Jordan, 16 N.Y.3d 845 (2011)………………………………………….25 People v. Lara, 130 A.D.3d 463 (1st Dept. 2015)………………………………...15 iv People v. LaSalle, 20 N.Y.3d 1024 (2013)………………………………………..25 People v. Louree, 8 N.Y.3d 541 (2007)…………………………………...16, 18, 25 People v. Love, 71 N.Y.2d 711 (1988)……………………………………………21 People v. Mason, 2 A.D.3d 272 (1st Dept. 2004)…………………………………24 People v. McAlpin, 17 N.Y.3d 936 (2011)………………………………………..25 People v. Nelson, 133 A.D.3d 536 (1st Dept. 2015)……………………………...15 People v. Nixon, 21 N.Y.2d 338 (1967)…………………………………………..24 People v. Pepper, 53 N.Y.2d 213 (1981)…………………………………23, 24, 25 People v. Pignataro, 22 N.Y.3d 381 (2013)………………………………….passim People v. Rivera, 14 N.Y.3d 753 (2010)………………………………………….25 People v. Smith, 132 A.D.3d 511 (1st Dept. 2015)……………………….15, 18, 23 People v. Snipes, 101 A.D.3d 472 (1st Dept. 2012)………………………………..8 People v. Sparber, 10 N.Y.3d 457 (2008)………………………………………...25 People v. Stewart, 16 N.Y.3d 839 (2011)…………………………………………25 People v. Turner, 24 N.Y.3d 254 (2014)………………………………………….24 People v. Van Deusen, 7 N.Y.3d 744 (2006)……………………………………..25 People v. Williams, 14 N.Y.3d 198 (2010)……………………………..4, 13, 17, 25 People v. Williams, 19 N.Y.3d 100 (2012)………………………………………..25 v STATUTES CPL § 400.15……………………………………………………………………...21 CPL § 400.21…………………………………………………………...3, 12, 16, 21 CPL § 440.20……………………………………………………………….7, 16, 17 CPL § 440.40……………………………………………………………...11, 12, 13 Penal Law § 70.04………………………………………………………………...19 Penal Law § 70.06………………………………………………………………...19 Penal Law § 70.07………………………………………………………………...19 Penal Law § 70.08……………………………………………………………...5, 19 Penal Law § 70.85……………………………………………………………passim Penal Law §110…………………………………………………………………….4 Penal Law § 120.14………………………………………………………………...4 Penal Law § 155.25………………………………………………………………...4 Penal Law § 155.30………………………………………………………………...4 Penal Law § 160.05………………………………………………………………...4 Penal Law § 160.15………………………………………………………………...4 Penal Law § 165.40………………………………………………………………...4 vi COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- KEITH FAGAN, Defendant-Respondent. ------------------------------------------------------------------X APPELLANT’S BRIEF STATEMENT By permission of the Honorable Eugene F. Pigott, an Associate Judge of the Court of Appeals, appellant appeals from an order of the Appellate Division, First Department, entered on December 1, 2015, which affirmed a judgment of resentence rendered on May 21, 2014, resentencing defendant, as a second violent felony offender, to a determinate term of fifteen years’ imprisonment, and also affirmed a decision entered on February 13, 2015, denying appellant’s CPL § 440.40 motion to set aside the judgment of resentence, by the Supreme Court of the State of New York, Bronx County (Villegas, J.). 1 QUESTIONS PRESENTED 1. Whether based on clear statutory law, as well as long-standing precedent from this Court, the convictions of tens of thousands of defendants in New York State, many of whom have not attempted to vacate their pleas or expunge their terms of PRS from their sentences, may continue to be used as predicate felonies to enhance those defendants’ sentences in subsequent recidivist felony cases? 2. Whether Catu should only apply to cases that were finalized after it was decided? SUMMARY OF ARGUMENT In People v. Pignataro, 22 N.Y.3d 381, 387 (2013), this Court confirmed that the Legislature’s carefully-crafted solution to rectifying and legally correcting a Catu error (People v. Catu, 4 N.Y.3d 242 [2005]) – Penal Law § 70.85 – is both constitutional and lawful. Ignoring the gravitas of Pignataro, i.e., that convictions with Catu errors can be rendered lawful, the Appellate Division, First Department has severely limited Pignataro and Penal Law § 70.85 to cases where the defendant has not served any portion of his post-release supervision (PRS) term prior to a Penal Law § 70.85 proceeding. The First Department has, therefore, circumvented both the legislative intent and the plain language of Penal Law § 70.85 and permitted convicted recidivist felons to obtain sentencing windfalls after they have garnered new felony convictions, even when they never previously demonstrated any interest in challenging their old, formerly unlawful Catu- violative convictions after they were rendered lawful (or at any time). 2 This outcome is particularly troubling in the instant case because Catu should have never invalidated defendant’s underlying 2000 conviction. People v. Catalanotte 72 N.Y.2d 641, 643 (1988), prevents courts from declaring prior convictions “unconstitutionally obtained” for predicate felony purposes (see CPL § 400.21[7][b]) when the basis for the defect did not exist at the time of the prior conviction and is not retroactively applicable. Under both state and federal standards, Catu should not have been retroactively applied to this conviction since it was finalized before Catu was decided. THE FACTS The 2000 New York County Judgment On April 18, 2000, in Supreme Court, New York County (Beeler, J.), under Indictment number 261/2000, defendant was convicted, following his guilty plea, of Attempted Robbery in the First Degree. Defendant has been unable to locate the plea minutes (see A. 64). As to that conviction, he was sentenced on May 23, 2000 to a term of imprisonment of seven years, without mention of a term of PRS (A. 5- 8). Defendant has indicated that he was released from prison on March 10, 2006, at which time PRS was administratively imposed (A. 79). In a resentencing proceeding on January 28, 2009 (Wiley, J.), the court, after noting that five years of PRS had been administratively imposed upon defendant’s prison release, 3 resentenced defendant “to the original 7 years determinate followed by five years post-release supervision” (A. 9-11). Defendant has also stated that on March 18, 2010, the court vacated this term of PRS pursuant to People v. Williams, 14 N.Y.3d 198 (2010) (A. 65), thereby continuing the original sentence pursuant to Penal Law § 70.85. The minutes from this March 18, 2010 proceeding have not been produced by defendant, and so presumably have also been lost. The 2009 Bronx County Indictment On February 10, 2009, the Grand Jury of Bronx County charged defendant with two counts each of Robbery in the First Degree (Penal Law § 160.15[4]), Robbery in the Third Degree (Penal Law § 160.05), Grand Larceny in the Fourth Degree (Penal Law § 155.30[5]), Petit Larceny (Penal Law § 155.25), Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.40), and Menacing in the Second Degree (Penal Law § 120.14[1]) (A. 14). The Plea In the midst of trial, defendant, through counsel, entered a plea of guilty to one count of Attempted Robbery in the First Degree (Penal Law §§ 110/160.15[4]), a class C felony, with the understanding that he would be sentenced to 18 years to life in prison, there would be permanent orders of protection for the victims, and he would waive his right to appeal (A. 20-22).1 1 Numerals preceded by “A.” reference the appendix. 4 Prior to entering the plea, the court adjudicated defendant a persistent violent felony offender (A. 21-36; A. 58; Penal Law § 70.08[3][b]). In pertinent part, the persistent violent felony offender statement utilized defendant’s prior 2000 conviction.2 Before defendant’s guilty plea, defendant first expressed interest in challenging his status as a persistent violent felony offender (A. 21-36). However, after conferring with his attorney several times in court, both defendant and his attorney agreed there was no merit to challenging the allegations in the persistent violent felony offender statement (A. 31-36). During his allocution, defendant admitted that on February 4, 2009, in the vicinity of East 180th Street between Daly Avenue and Vyse Avenue, he forcibly stole money and a pack of cigarettes from two victims (A. 37-41). Defendant also 2 In that persistent violent felony statement, the trial prosecutor listed the resentencing date of January 29, 2009, for defendant’s 2000 New York County conviction (A. 57), consistent with the recently decided case of People v. Acevedo, 75 A.D.3d 255, 256 (1st Dept. 2010) (when a defendant is resentenced to correct an unlawfully imposed term of PRS, the date of that resentence should be used for predicate felony purposes). Subsequently, the Appellate Division’s decision in Acevedo was reversed by this Court, which held that the date of imposition of the original sentence should be used in cases such as these. People v. Acevedo, 17 N.Y.3d 297, 302 (2011). In People v. Boyer, 22 N.Y.3d 15 (2013), this Court confirmed that “the controlling date of sentence for a defendant’s prior conviction is the original date on which the defendant received a lawful prison term pursuant to a valid conviction for that prior crime.” 5 acknowledged that, although he did not have a gun, he had told the victims that he had a gun while his hand was stuffed in his pocket (A. 37-38). During his guilty plea, the court informed defendant that he had exercised his right to go to trial but was waiving his right to continue trial by pleading guilty (A. 41). The court further advised defendant that he had exercised his right to the combined Wade,3 Mapp,4 and Huntley5 hearing and that the contested evidence had not been suppressed (A. 41). The court also explained that defendant had a right to have his attorney cross-examine the People’s witnesses and present his own witnesses but that he was waiving those rights by pleading guilty (A. 41). Defendant affirmed to the court that he was not under the influence of any medication or illegal substance and was pleading guilty on his own free will (A. 41-42). He also confirmed that nothing had been promised to him in exchange for his guilty plea besides the promised sentence of 18 years to life imprisonment (A. 42). The Sentence On July 6, 2010, before defendant was sentenced, the People asked the court to consider the serious nature of this case and that “there was certainly an element 3 United States v. Wade, 388 U.S. 218 (1967). 4 Mapp v. Ohio, 367 U.S. 643 (1961). 5 People v. Huntley, 15 N.Y.2d 72 (1965). 6 of kidnapping, not just merely a robbery” (A. 51-52). Defense counsel merely asked “that the court impose the agreed-upon sentence” (A. 52). The court then engaged defendant in a brief discussion regarding his criminal history and imposed “a minimum sentence of 18 years and a maximum sentence of the rest of his life” (A. 53-54). The court also noted that “defendant has waived his right to appeal” (A. 54). Finally, the court extended the orders of protection for the victims (A. 55- 56). Defendant’s CPL § 440.20 Motion On January 16, 2013, defendant, represented by Barbara Zolot, Esq., of the Center for Appellate Litigation, filed a motion to vacate the instant sentence pursuant to Criminal Procedure Law (“CPL”) § 440.20(1) (A.59-77). Defendant claimed (1) that his “adjudication as a persistent violent felony offender [was] illegally imposed and invalid as a matter of law” because his conviction in Supreme Court, New York County in 2000 of Attempted Robbery in the First Degree (Penal Law § 110/160.15[1]) was unconstitutionally obtained; and (2) that plea counsel was ineffective for failing to challenge the constitutionality of this conviction (A. 62, 66-67). The People countered that, although defendant was unlawfully resentenced to a term of post-release supervision (“PRS”) in 2009 in New York County, the 2010 vacatur of the PRS term of the 2000 conviction cured the Catu error (People 7 v. Catu, 4 N.Y.3d 242 [2005]), giving defendant what he had originally bargained for in 2000 (A. 87). Consequently, the People explained that the only relevant predicate sentence date was defendant’s original 2000 sentencing date where defendant was promised a sentence of seven years’ imprisonment and ultimately received exactly that without any further protest (A. 87-88, citing People v. Snipes, 101 A.D.3d 472 [1st Dept. 2012], People v. Pignataro, 22 N.Y.3d 381 [2013], and Penal Law § 70.85). The People also pointed out that the proper usage of the 2000 conviction as a predicate precluded defense counsel from being ineffective (A. 89). Defendant submitted a reply affirmation arguing that the vacatur of defendant’s PRS had no effect on its legality because he had already served a portion of the PRS (A. 96-97) and a further supplemental reply providing an affirmation from defendant’s former counsel at the Bronx County sentencing proceeding in which he claimed that “[h]ad [he] been aware that [defendant’s] previous conviction was obtained without him having been advised about post- release supervision, I would have challenged that conviction as unconstitutionally obtained” (A. 101). The court (Villegas, J.) issued a decision and order on June 28, 2013, denying defendant’s motion (A. 102-108). 8 The First Appeal Defendant’s appeal from the denial of his CPL § 440.20 motion was consolidated with his ongoing direct appeal in which he argued that his sentence was excessive. On April 3, 2014, the Appellate Division, First Department vacated defendant’s Bronx County sentence under Indictment number 944/2009, finding that defendant’s former counsel “rendered ineffective assistance at the July 6, 2010 sentencing proceeding when he failed to challenge the constitutionality of defendant’s 2000 New York County conviction, which was used as a predicate conviction in adjudicating defendant a persistent violent felon.” People v. Fagan, 116 A.D.3d 451 (1st Dept. 2014). The court further found that “[c]ontrary to the People's sole argument on appeal addressing the Catu issue, the vacatur of defendant's PRS could not cure the Catu error, or give defendant the benefit of his plea, since at the time of the vacatur he had already served four years of PRS, and had also spent time in jail in violation of that supervision. Accordingly, neither Penal Law § 70.85 nor People v. Pignataro, 22 N.Y.3d 381 (2013) has any applicability to the issues here.” Id. The court remanded for “a new adjudication and sentencing” in light of its decision. Id. 9 The Resentencing Proceeding On May 21, 2014, a resentencing hearing was held in Supreme Court, Bronx County (Villegas, J.). The People stated our intent to file a persistent violent felony offender statement on the basis of defendant’s 2000 Attempted Robbery in the First Degree conviction (see A. 113). The People argued that we should be permitted to use defendant’s 2000 conviction in an amended persistent violent felony offender statement, with the judgment date corrected (to the original 2000 sentencing date) to reflect this Court’s decision in People v. Acevedo, 17 N.Y.3d 297, 302 (2011). (A. 113-115; 143).6 Despite the People’s adapted predicate statement, the court concluded that the Appellate Division, in deciding defendant’s first appeal, prevented the use of any amended statement using the 2000 New York County conviction as an underlying predicate offense; it sentenced defendant as a second violent felon to a determinate term of imprisonment of fifteen years, followed by a period of five years of PRS (A. 126). The People filed a Notice to Appeal on June 13, 2014. 6 Specifically, as detailed above (supra, p. 5, n. 2) this Court held in Acevedo, 17 N.Y.3d at 302, and confirmed in Boyer, 22 N.Y.3d at 20, that that the date of imposition of the original sentence should be used in cases such as these. 10 The People’s CPL § 440.40 Motion On October 30, 2014, the People filed a motion to set aside defendant’s sentence pursuant to CPL § 440.40. We argued once more that defendant’s 2000 conviction in New York County could be lawfully used for predicate felony purposes wherein the predicate information recited the original 2000 sentencing date (the date of the most current sentence in that case following the vacatur of the 2009 resentence), which had been rendered lawful by the 2010 Penal Law § 70.85 proceeding (A. 139). We noted that in Boyer, 22 N.Y.3d at 20, this Court confirmed that “the controlling date of sentence for a defendant’s prior conviction is the original date on which the defendant received a lawful prison term pursuant to a valid conviction for that prior crime.” The People observed that in two recent Court of Appeals cases, the defendants’ convictions were used for predicate felony purposes despite the fact that they, like defendant, failed to challenge the unlawful imposition of PRS in their cases prior to serving PRS (A. A. 139-140). We also pointed out that, because defendant’s 2000 sentence did not violate his rights under the law as they existed at that time (in 2000 before Catu), the New York County conviction could be used for predicate felony purposes. In support, the People cited Catalanotte, 72 N.Y.2d at 643 (“for purposes of determining whether a prior conviction ‘was unconstitutionally obtained’ [CPL § 400.21(7)(b)] – and thus may not be counted for predicate felony purposes – the proper inquiry is to determine 11 whether the conviction was obtained in violation of the defendant’s rights as defined by the law at the time of the conviction”). The People explained to the court that we were unable to raise this argument on defendant’s initial appeal to the Appellate Division because it was based on an amended persistent violent felony information, a document then outside the record (A. 140). We asked the court to exercise its authority, under CPL § 440.40(1), to set aside defendant’s invalid sentence and resentence defendant as a persistent violent felon. On February 13, 2015, the Supreme Court, Bronx County (Villegas, J.), denied the People’s motion, finding that “the 1st department made clear that . . . Defendant’s defective 2000 conviction could not have been cured in 2009 when [PRS] was added or in 2010 when it was subsequently removed . . . because [] Defendant had served 4 years post release supervision and had been jailed for violating the terms of that supervision” (A. 150). The court further held that the Appellate Division had “left the final determination [of defendant’s predicate felon status] to the trial court” and that it was, therefore, not unlawful for it to find defendant a second violent felony offender (id.). Finally, the court determined that it had already considered and rejected the People’s argument at the resentencing proceeding (id.). The People filed a Notice of Appeal on March 3, 2015. 12 The Second Appeal On April 3, 2016, the Appellate Division, First Department affirmed the current sentence, finding that “[d]efendant’s 2000 conviction was unconstitutionally obtained for purposes of its use as a predicate felony.” People v. Fagan, 134 A.D.3d 411, 412 (1st Dept. 2015). The Court further found that the administrative imposition of PRS was not “was not cured by subsequent events, in which a PRS term was imposed judicially in 2009, and then removed in 2010 pursuant to People v. Williams, 14 N.Y.3d 198, 219-220 (2010), cert. denied 562 U.S. 947 (2010).” Id. (additional citation omitted). The court also found that although “[t]he motion court improperly invoked CPL § 440.40(2) in finding that this Court’s prior order constituted a binding determination that defendant’s 2000 conviction was obtained in violation of Catu and thus could not be used to enhance defendant’s sentence,” in that the first Fagan decision “did not decide that issue on the merits,” “this error . . . is academic in light of the foregoing discussion.” Id. (citation omitted). 13 ARGUMENT POINT ONE EVEN IF PEOPLE v. CATU, 4 N.Y.3d 242 (2005), APPLIES TO DEFENDANT’S PREDICATE CONVICTION (see infra, Point Two), THE PRS DEFECT WAS CURED BY DEFENDANT’S SUBSEQUENT RESENTENCING PURSUANT TO PENAL LAW § 70.85 AND DOES NOT, THEREFORE, FORECLOSE THE USE OF THE PREDICATE CONVICTION IN A SUBSEQUENT PERSISTENT VIOLENT FELONY STATEMENT. As New York State grappled with rectifying tens of thousands of cases with PRS errors in the wake of this Court’s holding in People v. Catu, 4 N.Y.3d 242 (2005) (failure to advise a defendant of the PRS component of a determinate sentence requires reversal of the conviction), the New York state legislature, in 2008, enacted Penal Law § 70.85. This statute provided that where a court did not “explicitly state” the term of PRS when imposing sentence, “the court may . . . on consent of the district attorney, re-impose the originally imposed determinate sentence of imprisonment without any term of post-release supervision, which then shall be deemed a lawful sentence.” In People v. Pignataro, 22 N.Y.3d 381, 387 (2013), this Court affirmed the necessary legislative remedy, holding that Penal Law § 70.85 “is a constitutionally permissible legislative remedy for the defectiveness of [a Catu-violative] plea” (emphasis added). In People v. Fagan, 14 116 A.D.3d 451 (1st Dept. 2014) and subsequent cases,7 however, the Appellate Division, First Department circumvented both Penal Law § 70.85 and this Court’s holding in Pignataro by drawing a new and unsupportable distinction between cases where a defendant’s PRS term was vacated in a Penal Law § 70.85 proceeding before an illegal PRS term was commenced and cases where a defendant served some portion of such a PRS term prior to a rectifying Penal Law § 70.85 proceeding and vacatur. This decision, a blow to the legislative and judicial efforts to settle the PRS conundrum, cannot stand. There is no basis in this Court’s jurisprudence for the Appellate Division’s distinction. Rather, this Court has twice upheld the use of a defendant’s prior conviction for predicate felony purposes despite a Catu error, although the defendants in those cases had served portions of their unlawfully imposed PRS terms. See People v. Acevedo, 17 N.Y.3d 297, 302 (2011) and People v. Boyer, 22 N.Y.3d 15, 20 (2013). This Court’s reasoning in Acevedo and Boyer, which addressed how resentencing proceedings following Catu violations impact the sequentiality of cases for predicate felony purposes, is instructive. In Acevedo, the defendants successfully sought to vacate their unlawfully imposed PRS terms after 7 See People v. Agard, 127 A.D.3d 602 (1st Dept. 2015); People v. Lara, 130 A.D.3d 463 (1st Dept. 2015); People v. Smith, 132 A.D.3d 511 (1st Dept. 2015); People v. Nelson, 133 A.D.3d 536 (1st Dept. 2015); People v. Fagan, 134 A.D.3d 411 (1st Dept. 2015); see also People v. Brewington, 127 A.D.3d 1248 (3rd Dept. 2015). 15 they had already been served so that the resentencing judgment would postdate their later felony conviction, and subsequently attempted to prevent the use of these convictions for predicate felony purposes. This Court forbade such obvious gamesmanship, holding that “resentencing is not in our view permissibly employed simply to leapfrog a sentence forward so as to vitiate its utility as a sentencing predicate.” Acevedo, 17 N.Y.3d at 302. In Boyer, this Court extended this holding, finding that even where the corrective resentencing is initiated by the People, rather than by the defendant, it still cannot be employed by defendants as a means to disqualify their convictions for predicate felony purposes. Boyer, 22 N.Y.3d at 25-26. In so holding, this Court emphasized “the public policy underlying the recidivist sentencing statutes,” which “are meant to enhance sentences for defendants who refuse to reform after receiving a valid conviction for a crime and hearing the court pronounce sentence.” Id. at 26. The only difference between those cases and this case is that here, defendant utilized CPL § 400.15(7)(b) rather than CPL § 440.20 to achieve the same functional ends – that is, to “avoid a well- deserved sentencing enhancement.” Boyer, 22 N.Y.3d at 26. Indeed, defendant, like the defendants in Avecedo and Boyer, had not in the nine years between his 2000 and 2009 convictions sought to either withdraw his guilty plea or vacate his sentence, either on direct appeal or in a collateral proceeding. See People v. Louree, 8 N.Y.3d 541, 545-546 (2007) (direct appeal is 16 the proper vehicle for challenging judicially imposed PRS); Garner v. New York State Dep’t of Corr. Servs., 10 N.Y.3d 358, 361 (2008) (article 78 is the proper vehicle for challenging administratively imposed PRS). Defendant has demonstrated, therefore, that he is interested in challenging this conviction not on its own merits, but purely as a means to take advantage of a potential loophole so as to avoid any enhancement of his subsequent Bronx County sentence despite his as yet undeterred recidivism. This end-run challenge at minimizing the future effect of an older felony is categorically different from a direct challenge to the Catu-violative conviction. See e.g. People v. Williams, 14 N.Y.3d 198 (2010) (several defendants successfully challenged the attachment of PRS to their sentences post-incarceration on double jeopardy grounds). Once more, here, defendant’s 2000 conviction was rendered lawful by the 2010 Penal Law § 70.85 proceeding. Because he never challenged that proceeding or conviction directly, his belated efforts to find it “unconstitutional” now for the instant predicate purposes fly in the face of the function of Penal Law § 70.85 as a means to legally correct Catu issues going forward. See Pignataro, 22 N.Y.3d at 386 (noting that “[p]rior to the enactment of Penal Law § 70.85, trial courts lacked a mechanism to impose a determinate sentence without a term of PRS” and thus “save [Catu- violative] pleas from vacatur”).8 8 Indeed, defendant’s use of CPL § 440.20 as a vehicle for challenging the 17 Moreover, there are similar “clarity and fairness” concerns present here as in Acevedo and Boyer (see Boyer, 22 N.Y.3d at 26) – if this Court prohibits the use of Penal Law § 70.85 proceedings to validate convictions where the defendants served a portion of their PRS terms, then both parties will be unable to rely on a defendant’s criminal history when ascertaining his predicate felon status. Rather, each potential qualifying felony conviction will have to be thoroughly investigated to determine whether a Catu violation occurred, whether it was unpreserved or expressly waived by the defendant (as occurred in the Smith case that is also before this Court for review), and whether any part of the unlawfully-imposed PRS term was served prior to the Penal Law § 70.85 proceeding. This would require, at a minimum, the preparation and ordering of transcripts from the predicate plea, sentencing, and Penal Law § 70.45 proceedings (potentially in far-flung jurisdictions) for each conviction. As the instant case demonstrates (i.e., defense counsel remains unable to obtain the plea minutes for defendant’s 2000 conviction or his 2010 resentencing), the hardship and impracticality of requiring such investigations (particularly where, as here, the underlying felony conviction was nearly nine years old and from another jurisdiction) would end up giving lawfulness of his 2000 conviction in New York County also circumvents Louree, 8 N.Y.3d at 545-546, in which this Court held that judicially imposed PRS should be challenged on direct appeal. 18 defendants a free ride despite their prior convictions, whole ignoring their recidivism in the face of long-standing law.9 Equities and practical difficulties aside, prohibiting the use of these convictions for predicate felony purposes not only eviscerates Penal Law § 70.85, which by its plain language provides a curative procedure by allowing courts to “deem[]” determinate sentences lacking PRS terms “lawful” where the underlying convictions contained Catu errors, but also foists a mountain of unnecessary work on an already beleaguered system. Since tens of thousands of defendants in this state have Catu-violative convictions,10 the enormous judicial economy interest in ensuring that Penal Law § 70.85 continues to provide a lawful avenue for courts to correct Catu errors would be wasted should Fagan by upheld as state law. Indeed, beyond the new investigations discussed earlier, the Appellate Division, First Department’s decision would and has already opened the floodgates in other ways. There are now additional claims in lower courts that defendants’ Catu-violative 9 It is worth noting that even with the consent of the People, sentencing courts have no discretion to overlook a qualifying felony conviction. See Penal Law §§ 70.04(2), 70.06(2), 70.07(4), 70.08(2) (when a person is properly classified as a predicate felony offender, the court “must” or “shall” impose an enhanced sentence within the relevant statutory parameters). 10 The New York State Department of Correctional Services estimates that Catu affected the PRS terms of “as many as 30,000 criminal defendants.” New York v. Williams, Petition for a Writ of Certiorari, Supreme Court of the United States, No. 09-1425, 2010 WL 213037, *3-4 (US) (Appellate Petition, Motion and Filing) (May 21, 2010). 19 convictions, once precluded from use in a persistent violent felony statement pursuant to Fagan, also cannot be used for tolling purposes, thereby allowing defendants who should be adjudicated persistent violent felons to circumvent not one but two of their prior qualifying felonies. Courts are now conducting additional proceedings and ruling out other predicate felonies based on this tolling argument already. See People v. Bond, 2016 Slip Op. 26101 (Sup. Ct. Bronx Co. 2016). This domino effect of litigation and windfalls must end. In sum, where a defendant’s Catu-violative conviction has been made lawful through a Penal Law § 70.85 proceeding, fairness, precedent, and practicalities all dictate that the recidivist defendant cannot be permitted use the original Catu violation to obtain one or more sentencing windfalls following a subsequent felony conviction. 20 POINT TWO CATU DOES NOT RETROACTIVELY APPLY TO DEFENDANT’S 2000 GUILTY PLEA IN THE FIRST INSTANCE. This Court in People v. Catalanotte 72 N.Y.2d 641, 643 (1988), held that “for purposes of determining whether a prior conviction ‘was unconstitutionally obtained’ (CPL § 400.21[7][b]) – and thus may not be counted for predicate felony purposes – the prior inquiry is to determine whether the conviction was obtained in violation of the defendant’s rights as defined [1] by the law at the time of the conviction or [2] by present law which is properly applied to it under recognized principles of retroactivity.” Neither factor applies here, and this Court should hold that Catu does not apply to defendant’s 2000 conviction which became final long before Catu. First, Catu was decided in 2005, five years after defendant’s 2000 conviction. It was, therefore, not “the law at the time of the conviction.” Catalanotte, 72 N.Y.2d at 643. Moreover, Catu was decided on state law grounds, so the plain language of CPL § 400.15(7)(b), which only prohibits the use of “[a] previous conviction in this or any other jurisdiction . . . obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States” (emphasis added), prevents its application to defendant’s case in any event. See People v. Love, 71 N.Y.2d 711, 713 (1988) (CPL § 440.21[7][b] 21 applies only to a “violation of a defendant’s Federal constitutional rights”) (emphasis added). Catu does not cite any federal law or even mention the United States Constitution, and, thus, as numerous federal courts have found, the rule set forth is purely one of state law. See Sanchez v. Keller, No. 06-Civ-3370, 2007 WL 4927791, *8 (S.D.N.Y. 2007) (because the Supreme Court has never addressed the issue of whether mandatory supervised release is a direct consequence of one’s conviction, the trial court’s failure to inform [defendant] of his mandatory PRS cannot be a violation of clearly established federal law”); Shabazz v. Perlman, No. 04-Civ-4355, 2005 WL 2105533, *6 (S.D.N.Y. 2005) (“Catu is not controlling in this federal habeas proceeding because it is state law. Federal habeas is available only ‘on the ground that the petitioner is in custody in violation of the Constitution or laws… of the United States’”) (internal citation omitted). This Court has certainly pointed to such interpretation as well. See Pignataro, 22 N.Y.3d at 385 (“By now it is well established that the State Constitution requires a trial court to ensure that a defendant has a ‘full understanding of what the plea connotes and its consequences’”) (quoting Catu) (emphasis added). Second, Catu is also not “properly applied [to defendant’s 2000 conviction] under recognized principles of retroactivity” (Catalanotte, 72 N.Y.2d at 643) 22 because Catu announced a “new rule.” 11 As a holding purely of state law, Catu’s retroactivity is governed by the New York standard, which is set out by People v. Pepper, 53 N.Y.2d 213, 222 (1981). Pepper invokes three factors when determining whether a change in the law should have retroactive application: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Id. at 220, quoting Desist v. United States, 394 U.S. 244, 249 (1969). Ultimately, a new rule should only be retroactive on postconviction review when it involves “manifest injustice” going “to the heart of a reliable determination of guilt.” Id. at 221. Such a concern weighs less heavily where, as here, the determination of guilt is the result of defendant’s guilty plea and defendant is not now challenging his guilt of the instant offense. The Pepper factors militate against retroactive application of the Catu rule. In regard to the first Pepper factor, the purpose of Catu is to ensure that guilty pleas are made with the defendant’s full awareness of the direct consequences of the plea. This is an important consideration, to be sure, but full knowledge of the 11 The Appellate Division, First Department’s prior ruling in Smith, 132 A.D.3d at 512, that “the rule of law announced in Catu applies retroactively to pre-Catu convictions” is currently before this Court for review. We would urge this Court to reverse that holding and find that Catu applies only prospectively. 23 sentence that one faces as a result of a guilty plea does not bear on the “reliable determination of guilt or innocence” of the accused. Id. In regard to the second Pepper factor, Catu was the first of its kind. Prior to Catu, all departments had held that a defendant who wished to vacate a guilty plea because he was not told of a PRS term had to either demonstrate that he was prejudiced by the omission or that the omission was not harmless. See People v. Mason, 2 A.D.3d 272 (1st Dept. 2004); People v. Ballinger, 12 A.D.3d 686, 688 (2nd Dept. 2004); People v. Goss, 286 A.D.2d 180, 184 (3rd Dept. 2001); People v. Bonilla, 6 A.D.3d 1059 (4th Dept. 2004). These holdings were consistent with this Court’s previous holding in People v. Nixon, 21 N.Y.2d 338, 355 (1967), requiring that a defendant demonstrate prejudice in order to vacate a conviction on the basis of an omission during the plea allocution. Moreover, the last decade has clearly evinced Catu’s substantial impact on the criminal justice landscape. Catu was decided seven years after the PRS system was created. In that seven-year period, as many as 30,000 defendants were subjected to PRS terms without being informed prior to their convictions (see supra, p. 20 n. 10). And, as this Court is well aware, this case is merely the most recent of the legion of cases in which this Court has been obliged to clarify the Catu holding to accommodate a growing number of factual scenarios. See People v. Crowder, 24 N.Y.3d 1134 (2015); People v. Turner, 24 N.Y.3d 254 (2014); 24 People v. Cintron, 22 N.Y.3d 757 (2014); People v. Beaty, 22 N.Y.3d 490 (2014); People v. Pignataro, 22 N.Y.3d 381 (2013); People v. LaSalle, 20 N.Y.3d 1024 (2013); People v. Collier, 22 N.Y.3d 429 (2013); People v. Williams, 19 N.Y.3d 100 (2012); People v. McAlpin, 17 N.Y.3d 936 (2011); People v. Stewart, 16 N.Y.3d 839 (2011); People v. Jordan, 16 N.Y.3d 845 (2011); People v. Cornell, 16 N.Y.3d 801 (2011); People v. Williams, 14 N.Y.3d 198 (2010); People v. Rivera, 14 N.Y.3d 753 (2010); People v. Boyd, 12 N.Y.3d 390 (2009); People v. Sparber, 10 N.Y.3d 457 (2008); Garner v. New York State Department of Correctional Services, 10 N.Y.3d 358 (2008); People v. Hill, 9 N.Y.3d 189 (2007); People v. Louree, 8 N.Y.3d 541 (2007); People v. Van Deusen, 7 N.Y.3d 744 (2006). In regard to the third Pepper factor, as has already been suggested, “the effect on the administration of justice of a retroactive application of the new standards” would be extreme. Pepper, 53 N.Y.3d at 220. This Court observed in Pepper that applying a new rule retroactively to cases on postconviction review “impermissibly. . . means that every defendant to whose case it was relevant, no matter how remote in time and merit, would become its beneficiary.” Id. at 222. Indeed, in this particular context, retroactive application of Catu to cases that are being used to enhance subsequent felony sentences will result in decades of indirect attacks on aging convictions which were not challenged in a timely 25 manner on direct or even collateral grounds (see supra, Point One). In sum, all three Pepper factors weigh against retroactive application of Catu. To the extent that this Court does find that Catu invoked the federal constitution, the federal retroactivity standard outlined in Teague v. Lane, 489 U.S. 288 (1989) also militates against retroactive application. Initially, as explicated above (see supra, 25), Catu is a “new rule” that does not derive from previous precedent. See People v. Baret, 23 N.Y.3d 777, 784 (2014) (“a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final”), quoting Teague, 489 U.S. at 301. Therefore, it “do[es] not apply retroactively to cases that had become final on direct review before the new rule was announced” (id. at 783) unless it falls under one of two exceedingly narrow categories: (1) “if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe”; or (2) if it represents a “watershed rule of criminal procedure,” in other words, “those new procedures [of fundamental fairness] without which the likelihood of an accurate conviction is seriously diminished.” Baret, 23 N.Y.3d at 784, quoting Teague, 489 U.S. at 311, 313. 26 It is evident that neither of these narrow exceptions apply to Catu. First, Catu plainly does not place new limitations on the state’s ability to prosecute individual conduct. Second, it is not “central to an accurate determination of guilt or innocence” or “the fundamental fairness of a trial.” Baret, 23 N.Y.3d at 798, quoting People v. Eastman, 85 N.Y.2d 265, 276 (1995). Catu involved uninformed guilty pleas, an important issue, to be sure, but not one that fundamentally undermines one’s confidence in the guilt of the convicted defendant. The parallels in this respect between Catu and Padilla v. Kentucky, 130 S.Ct. 1473 (2010), which involved a defendant pleading guilty without an awareness of the potential immigration consequences of her plea, are unavoidable. Both cases involve guilty pleas that had consequences beyond what the defendants anticipated, and those consequences may (particularly in Padilla) have caused the defendants to rethink their pleas. In regard to the latter case, of course, the Judges of this Court held that “we cannot say” that Padilla invoked the watershed exception (Baret, 23 N.Y.3d at 798) and, therefore, Padilla was found to be non-retroactive. Therefore, under either the state or federal paradigm, Catu should not apply retroactively to cases not pending on direct review when it was decided. 27 CONCLUSION FOR THE FOREGOING REASONS, THE ORDER APPEALED FROM SHOULD BE REVERSED IN ALL RESPECTS. Respectfully submitted, DARCEL D. CLARK District Attorney, Bronx County Attorney for Appellant ______________________________ By: CLARA H. SALZBERG Assistant District Attorney NANCY D. KILLIAN JUSTIN J. BRAUN CLARA H. SALZBERG Assistant District Attorneys Of Counsel June 9, 2016 28 Addendum People v. Bond, 52 Misc.3d 207 (2016) 28 N.Y.S.3d 296, 2016 N.Y. S p Op. 26101 52 Misc.3d 207 Supreme Court, Bronx County, New York. The PEOPLE of the State ofNewYork V. Thomas BOND, Defendant. March 31, 2016. Synopsis Background: Defendant was convicted on guilty plea in the Supreme Court, Stadtmauer, J ., of attempted burglary in the second degree and adjudicated a persistent violent felony offender, and later resentenced as second violent felony offender. People appealed. The Supreme Court, Appellate Division, 115 A.D.3d 611, 986 N .Y.S.2d 327, reversed and remanded. [Holding:] On remand, the Supreme Court, Bronx County, Richard L. Price, J ., held that defendant's prior conviction could not be used to toll ten-year limitation on the prior violent felonies period. Ordered accordingly. Attorneys and Law Firms *296 Laura Boyd, Esq., Legal Aid Society. Justin Braun, Assistant District Attorney, Office of the Bronx District Attorney. Opinion RICHARD L. PRICE, J. On July 13, 2010, a judgment of conviction was entered against the defendant in Supreme Court, Bronx County (Stadtmauer, J .) upon a plea of guilty to attempted burglary in the second degree (PL 110/140.25[2] ) under the above-captioned indictment ( 4505 2007). Pursuant to Penal Law § 70.08, defendant, having been previously convicted of two violent felony offenses, was adjudicated a persistent violent felony offender and sentenced to an indeterminate term oflife imprisonment with a mandatory minimum period of twelve years. One of the two prior violent felony offenses was a judgment of conviction entered on September 28, 2000, in the Supreme Court, Bronx County (Stadtmauer, J .), upon his plea of guilty to burglary in the second degree (PL 140.25[2] ) under indictment 1114 2000. Defendant was adjudicated a second violent felony offender and sentenced to a determinate term of five years imprisonment. No term of post-release supervision (PRS) was imposed. On April 14, 2004, defendant was conditionally released to the Division of Parole and began serving administratively imposed post-release supervision. On November 16, 2004, defendant was declared delinquent, served an incarceratory term imposed on an unrelated case , and was *297 subsequently released on May 6, 2005. Defendant served post-release supervision until July 5, 2006. By letter dated January 6, 2009, the New York State Department of Corrections and Community Supervision ("DOCCS") identified the defendant as a "designated person" pursuant to Correction Law§ 601 d. On March 9, 2009, Judicia l Hearing Officer Eileen Koretz determined that, in fact, defendant was neither advised of nor sentenced to a period of post-release supervision. As such, in accordance with Correction Law§ 601 d, the District Attorney advised the court that they would not seek resentencing with a period of post-release supervision. On March 30, 2009, Justice Collins ordered that the original sentence imposed shall be unaltered and remain the sentence of the court. On January 13,2012, defendant moved in Supreme Court, Bronx County, pursuant to Criminal Procedure Law § 440.20, to set aside the persistent violent felony offender sentence imposed on July 13, 2010, and resentence as a second violent felony offender. Arguing that, under People v. Butler, 88 A.D.3d 470, 931 N .Y.S.2d 277 (1st Dept.2011), the 2009 Correction Law§ 601 d proceeding on defendant's 2000 conviction constituted a resentencing, and, therefore, defendant's 2000 conviction could not serve as a predicate felony for his 2010 conviction. Constrained by the Butler precedent, this court vacated defendant's original July 13, 2010, sentence under the above-captioned indictment (4505 2007). On October 12, 2012, this court resentenced the defendant, as a second violent felony offender, to a determinate term of seven years imprisonment with a period of five years of post- WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 People v. Bond, 52 Misc.3d 207 (2016) 28 N.Y.S.3d 296, 2016 N.Y. S pOp. 26101 release supervision. The People appealed from this court's decision. In a decision dated March 27, 2014, the Appellate Division, First Department, unanimously reversed this court's order based on the Court of Appeals subsequently established precedent in People v. Boyer, 22 N.Y.3d 15, 977 N.Y.S.2d 731, 999 N.E.2d 1176 [2013] [effectively reversing the First Department's decision in Butler, 88 A.D.3d 470, 931 N.Y.S.2d 277], which vacated the October 12, 2012, resentence, and reinstated the original July 13, 2010, sentence of twelve years to life (People v. Bond, 115 A.D.3d 611,986 N.Y.S.2d 327 [1st Dept.2014] ). Then, by motion submitted August 3, 2015, defendant claimed that trial counsel rendered ineffective assistance at his July 13, 2010, sentencing by failing to challenge the constitutionality defendant's 2000 predicate felony conviction on the basis of People v. Catu, 4 N.Y.3d 242, 792 N .Y.S.2d 887, 825 N .E.2d 1081 (2005) thus requiring that his persistent violent felony offender adjudication be vacated. In accordance with the controlling authority of the Appellate Division, First Department (People v. Fagan, 116 A.D.3d 451,983 N.Y.S.2d 28 [1st Dept.2014] ), this court was constrained to grant defendant's motion to vacate his persistent violent felony offender sentence pursuant to Criminal Procedure Law § 440.20, and resentence him as a second violent felony offender. Consequently, the People filed a second violent felony information seeking to have the defendant adjudicated as such based on his November 5, 1986, conviction of *298 attempted burglary in the second degree. Defendant claims, however, that based on Fagan, not only is his 2000 conviction unconstitutional for purposes of adjudication as a persistent violent felony offender, it also precludes adjudication as a second violent offender because his imprisonment on that conviction did not toll the ten-year limitation pursuant to Penal Law§ 70.04(l )(b)(v). After review of the motion papers, papers on file with the court, and prior court proceedings, this is, once again, constrained to agree with the defendant. ll. Discussion As this court previously observed, the First Department clearly staked out its position that trial counsel's failure to adequately investigate whether the defendant was properly advised of post-release supervision on a prior felony conviction (upon a guilty plea) in violation of Catu, and failure to litigate whether such violation rendered the prior conviction unconstitutional for predicate felony purposes constitute ineffective assistance of counsel (People v. Lara, 130 A.D.3d 463, 13 N.Y.S.3d 74 [1 st Dept.2015]; People v. Agard, 127 A.D.3d 602, 8 N.Y.S.3d 125 [l st Dept.2015]; Fagan, 116A.D.3d451, 983 N.Y.S.2d 28). (1( Defendant argues, in essence, that pursuant to Criminal Procedure Law § 400.15(7)(b), an unconstitutionally obtained conviction must not be considered in adjudicating the defendant a second violent felony offender, regardless of whether the defendant previously sought to vacate such conviction (People v. Small, 26 N.Y.3d 253, 22 N.Y.S.3d 383, 43 N.E.3d 740 (2015] ). In Small, the Court of Appeals specifically stated, "We decline to read section 70.04(l)(b)(v), or our decisions in Dozier and Love, to include only those periods of incarceration that are based on subsequently invalidated or vacated convictions" (Small, 26 N.Y.3d at 260 61, 22 N.Y.S.3d 383, 43 N.E.3d 740). Notably, it explicitly found that the determination whether a prior felony conviction constitutes a predicate felony conviction and whether it may serve to toll the ten-year limitation "are not independent concepts which should be separately considered and evaluated" (People v. Love, 71 N.Y.2d 711, 715, 530 N.Y.S.2d 55, 525 N .E.2d 701 [1988] ). (2( The People, for their part, urge this court to distinguish Small, Dozier, and Love on the basis that they invalidated the underlying convictions as either without reason or patently unjustified (Small, at 260, 22 N.Y.S.3d 383,43 N.E.3d 740; People v. Dozier, 78 N.Y.2d 242, 573 N.Y.S.2d 427, 577 N.E.2d 1019 [1991] ). A Catu violation, conversely, does no such thing. Rather, it neither affects the fina lity of the conviction nor negates any previously entered judicial determination. But even the People acknowledge that a post-Catu predicate adjudication challenge is limited to whether such conviction may be used for purposes of sentence enhancement. And, as Love established, a prior felony offender adjudication and the ten-year limitation, or the tolling thereof, are inseparable. Presumably, the reason is that both are rooted in the sentence enhancement rubric. Thus, whatever may be said of Fagan's impact, it ostensibly extends to precluding use of a prior felony conviction obtained in violation of Catu WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 People v. Bond, 52 Misc.3d 207 (2016) 28 N.Y.S.3d 296, 2016 N.Y. S pOp. 26101 from tolling the ten-year limitation period provided in 70.04(1 )(b )(v). ill. Conclusion For the reasons set forth above, the People are barred from relying upon defendant's 2000 conviction in adjudicating him as a second violent felony offender. This constitutes the decision and order of the court. Footnotes *299 The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration. All Citations 52 Misc.3d 207, 28 N.Y.S.3d 296, 2016 N.Y. Slip Op. 26101 1 Defendant had been re-arrested on November 9, 2004, and subsequently charged, under SCI number 59166C/2004, with petit larceny (PL § 115.25), unauthorized use of a vehicle in the third degree (PL § 165.05 (1] ). criminal possession of stolen property in the fifth degree (PL § 165.40), and a motor vehicle violation (VTL § 509(1] ). On November 16, 2004, he pled guilty in Supreme Court, Bronx County, to unauthorized use of a vehicle in the third degree (PL § 165.05(1] ) and was sentenced to nine months imprisonment. End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3