The People, Appellant,v.Keith Fagan, Respondent.BriefN.Y.September 13, 2016To be argued by APL-2016-00089 BARBARA ZOLOT (15 minutes requested) Court of Appeals State of New York THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - KEITH FAGAN, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT Robert S. Dean Attorney for Defendant-Appellant Center for Appellate Litigation 120 Wall Street New York, NY 10005 TEL (212) 577-2523 FAX (212) 577-2535 bzolot@cfal.org BARBARA ZOLOT Of Counsel TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS .. . . . . . . . . . . . . . . . . . . . 8 A. Plea and sentencing proceedings in Ind. No. 261/00 . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Plea and sentence proceedings under Ind. No. 944/09 . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. C.P.L. § 440.20 Litigation. . . . . . . . . . . . 9 D. Fagan I.. . . . . . . . . . . . . . . . . . . . . 11 E. The C.P.L. § 440.40 Litigation .. . . . . . . . . 12 F. Fagan II. . . . . . . . . . . . . . . . . . . . . 14 ARGUMENT .. . . . . . . . . . . . . . . . . . . . . . . . . 15 POINT I MR. FAGAN’S PLEA VIOLATED CATU, A DEFECT THAT THE REMOVAL OF POST-RELEASE SUPERVISION PURSUANT TO PEOPLE V. WILLIAMS, AFTER HE HAD SERVED FOUR YEARS OF IT, DID NOT, AND COULD NOT, REMEDY. AS SUCH, HIS CONVICTION WAS UNCONSTITUTIONALLY OBTAINED AND WAS PROPERLY EXCLUDED BY THE COURT FROM PREDICATE USE AT HIS RESENTENCING IN THE INSTANT MATTER.. . . . . . . . . . . . . . . . . . . . 15 A. The Applicable Law. . . . . . . . . . . . . . . . 17 B. A Williams Proceeding Can Stop an Ongoing Double Jeopardy Violation but Cannot Remedy a Catu Defect. . . . . . . . . . . . . . . . . . . . . . . . . . 20 C. In Any Event, as Mr. Fagan Actually Served a Period of Post-Release Supervision, Its Subsequent Removal Could Not Render the Plea Lawful... . . . . . . . 23 i POINT II AS CATU APPLIED A WELL-ESTABLISHED CONSTITUTIONAL PRINCIPLE TO A NEW CIRCUMSTANCE, IT WAS NOT A “NEW RULE” AND WAS PROPERLY APPLIED TO MR. FAGAN’S 2000 CONVICTION. .. . . . . . . . . . . . . . . . . . . . . . . . . . . 31 CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . 42 PRINTING SPECIFICATIONS STATEMENT.. . . . . . . . . . . . . 1A ii TABLE OF AUTHORITIES Federal Cases Boykin v. Alabama, 395 U.S. 238........................ 32, 35 Desist v. United States, 394 U.S. 244 (1969)............... 38 Ferguson v. United States, 513 F.2d 1011 (2d Cir. 1975). 38, 39 Halliday v. United States, 394 U.S. 831 (1969)............. 38 Hill v. Lockhart, 474 U.S. 52 (1985)....................... 32 Mabry v. Johnson, 467 U.S. 504 (1984)...................... 32 McCarthy v. United States, 394 U.S. 459 (1969)......... 32, 36 Michel v. United States, 507 F.2d 461...................... 38 North Carolina v. Alford, 400 U.S. 25 (1970)............... 32 Teague v. Lane, 489 U.S. 288 (1989)........................ 37 Yates v. Aiken, 484 U.S. 211 (1988)........................ 37 State Cases Chaipis v. State Liq. Auth., 44 N.Y.2d 57 (1978)........... 27 Matter of Garner v. New York State Dept. Of Correctional Servs., 10 N.Y.3d 358 (2008)............................... 17 People v. Abdus-Samad, 69 A.D.3d 516 (1st Dep’t 2010)...... 28 People v. Acevedo, 17 N.Y.3d 297 (2011)............ 12, 25, 26 People v. Boyer, 22 N.Y.3d 15 (2013)................... 25, 26 People v. Callendar, 90 N.Y.2d 831 (1997).................. 32 People v. Catalanotte, 72 N.Y.2d 641 (1988)............ Passim People v. Catalonotte, 36 N.Y.2d 192 (1975)................ 34 People v. Catu, 4 N.Y.2d (2005)............................ 10 People v. Catu, 4 N.Y.3d 242 (2005).................... Passim People v. Conceicao, 26 N.Y.3d 375 (2015).................. 36 People v. Danny G., 61 N.Y.2d 169 (1984)................... 27 People v. Eastman, 85 N.Y.2d 265 (1995).................... 37 People v. Fagan, 116 A.D.3d 451 (1st Dep’t 2014)....... 11, 12 People v. Fagan, 134 A.D.3d 411 (1st Dep’t 2015)....... 14, 15 People v. Ford, 86 N.Y.2d 397.............................. 32 People v. Hagan, 24 N.Y.2d 395 (1969)...................... 34 People v. Harris, 61 N.Y.2d 9 (1983)............... 27, 28, 29 iii People v. Hill, 9 N.Y.3d 189 (2007).................... 17, 22 People v. Hinton, 31 N.Y.2d 71 (1972)...................... 34 People v. Jelke, 308 N.Y. 56 (1954)........................ 34 People v. Jones, 47 N.Y.2d 409 (1979).................. 34, 37 People v. Lingle, 16 N.Y.3d 621 (2011)..................... 26 People v. Lopez, 71 N.Y.2d 662 (1988)...................... 36 People v. McConnell, 49 N.Y.2d 340 (1980).................. 27 People v. Mitchell, 80 N.Y.2d 519 (1992)................... 38 People v. Nixon, 21 N.Y.2d 338 (1967)...................... 36 People v. Pignataro, 20 A.D.3d 892 (4th Dep’t 2005)........ 40 People v. Pignataro, 22 N.Y.3d 381 (2013).............. Passim People v. Province, 47 Misc. 3d 286 (Sup. Ct. N.Y. Co. 2015).35 People v. Santiago, 91 A.D.3d 438 (1st Dep’t 2012)......... 28 People v. Smalls, 26 N.Y.3d 253 (2015)..................... 28 People v. Smith, 132 A.D.3d 511 (1st Dep’t 2015)........... 14 People v. Sparber, 10 N.Y.3d 457 (2008)................ 18, 20 People v. Tyrell, 22 N.Y.3d 359 (2013)..................... 36 People v. Van Deusen, 7 N.Y.3d 744 (2006).............. 17, 22 People v. Williams, 14 N.Y.3d 198 (2010)............... Passim Peters v. New York City Housing Auth., 307 N.Y. 519 (1954). 41 State Statutes C.P.L. § 400.15..................................... 3, 27, 29 C.P.L. § 400.16..................................... 3, 27, 29 C.P.L. § 440.10............................................ 40 C.P.L. § 440.20...................................... 4, 9, 11 C.P.L. § 440.40.............................. 1, 4, 12, 13, 14 Correction Law 601-d..................................... 4, 9 Penal Law § 70.45.......................................... 33 Penal Law § 70.85...................................... Passim iv COURT OF APPEALS STATE OF NEW YORK -----------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Appellant, : -against- : KEITH FAGAN, : Defendant-Respondent. : -----------------------------------------X PRELIMINARY STATEMENT By permission of the Hon. Eugene F. Pigott, Jr., granted April 12, 2016, the People appeal from a December 1, 2015 order of the Appellate Division, First Department (1) affirming a judgment of resentence, rendered May 21, 2014, in Supreme Court, Bronx County, and (2) affirming a decision of that same court, entered February 13, 2015, denying the People’s motion pursuant to C.P.L. § 440.40 to set aside the judgment of resentence. Respondent Keith Fagan is currently incarcerated on the resentence imposed, a determinate sentence of 15 years and five years of post-release supervision. QUESTIONS PRESENTED 1. Whether respondent Keith Fagan’s 2000 conviction was unconstitutionally obtained and was properly excluded by the court from predicate use at his resentencing in the instant matter, because the removal of post-release supervision pursuant to People v. Williams, from Mr. Fagan’s 2000 sentence, after he had served four years of it, did not, and could not, remedy the Catu defect in Mr. Fagan’s 2000 plea. 1 2. Whether Catu was properly applied to Mr. Fagan’s 2000 conviction as it applied a well-established constitutional principle to a new circumstance and was not a “new rule.” SUMMARY OF ARGUMENT When respondent Keith Fagan pleaded guilty in April 2000, he was not told by the court about the period of post-release supervision he was required to serve, nor did the court impose it when sentencing him. Both failures violated the law. After Mr. Fagan’s release from prison and his service of three years of administratively and unlawfully imposed post-release supervision, he was returned to court and sentenced to five years of post-release supervision, over his well-founded objection that its imposition at that late date violated double jeopardy. The court did not offer Mr. Fagan the chance to withdraw his plea, and Penal Law § 70.85 was neither mentioned nor invoked. A year later, in March 2010, ten years after he pleaded guilty and now having served four years of post-release supervision, the post-release supervision period previously imposed was removed as double-jeopardy violative. His sentence without any continuing period of post-release supervision, although statutorily unauthorized, was thus permitted to stand. It is within this context of accumulated error that Mr. Fagan successfully challenged the use of his corrupted conviction to enhance his sentence in the instant case, and 2 was re-sentenced to a determinate term of 15 years and five years’ post-release supervision on his conviction for attempted robbery in the first degree. This Court should affirm the Appellate Division’s decision upholding that still- severe sentence, and reject the prosecution’s attempt to destabilize the law and put at risk other sentences that lower courts and two Departments of the Appellate Division found were required by standard application of C.P.L. §§ 400.15 and 400.16. Mr. Fagan’s resentencing was consistent with this Court’s repeated pronouncements confirming the significance of post- release supervision, with longstanding law establishing and reaffirming a trial court’s duty to advise defendants of the direct consequences of any plea, and with the rules governing recidivist sentencings. The governing rule derived from Mr. Fagan’s case is simple and fair: A defendant who pleaded guilty unaware of the direct consequence of post-release supervision should not later suffer an enhanced sentence on the basis of such plea, if he actually served a period of post-release supervision. Mr. Fagan falls into this limited category. There is no dispute that the court neglected to advise him when he pleaded guilty in 2000 that his determinate sentence would necessarily include a period of post-release supervision, nor that he had nonetheless served three years of supervised release when he 3 was recalled to court in January 2009 and resentenced pursuant to Correction Law 601-d, and four years of it when it was finally removed in March 2010 pursuant to People v. Williams. The Appellate Division correctly upheld Mr. Fagan’s subsequent challenge, via C.P.L. § 440.20, to the use of that conviction to adjudicate him a mandatory persistent violent felony offender in the instant 2010 case (“Fagan I”), and correctly upheld the resentence that followed (“Fagan II”). In Fagan I, the court agreed with Mr. Fagan that counsel in June 2010 was ineffective for failing to investigate and challenge the use of the 2000 plea for predicate purposes — a failure trial counsel acknowledged in a sworn affirmation — as such investigation would have readily revealed that it was constitutionally infirm under People v. Catu, 4 N.Y.3d 242 (2005). The court rejected the prosecution’s sole argument — that the subsequent removal of post-release supervision at the Williams proceeding “cured” the infirmity. The prosecution sought no appeal to this Court. In Fagan II, on the prosecution’s consolidated appeal from the resentencing that followed Fagan I, and the trial court’s denial of the prosecution’s related motion pursuant to C.P.L. § 440.40, the court rejected the prosecution’s sole argument on appeal, that the 2000 conviction could still be used to enhance Mr. Fagan’s sentence because it did not violate his rights under the law as it stood at the time — the 4 2000 date being the operative date pursuant to the amended persistent violent felony statement the prosecution tried to file at the resentencing. Now, on its appeal from Fagan II to this Court, the prosecution resurrects the argument it lost in Fagan I (and did not seek to appeal to this Court) and which its 440.40 motion mentioned in passing — that, under People v. Pignataro, 22 N.Y.3d 381 (2013), the vacatur of Mr. Fagan’s post-release supervision in March 2010 sanctioned the prosecution’s use of the 2000 conviction for predicate purposes in June 2010, notwithstanding that, before it was removed, Mr. Fagan, unlike defendant Pignataro, had actually served a period — four years — of post-release supervision. The prosecution also maintains, as it did in its Fagan II appeal, that Catu does not apply as the plea was entered before Catu was decided in 2005. This Court should reject both arguments. As established further below (see Point IB), the prosecution’s reliance on Pignataro and Penal Law § 70.85 is wholly misplaced in Mr. Fagan’s case. Penal Law § 70.85 had nothing to do with the March 2010 removal of post-release supervision from Mr. Fagan’s sentence. That proceeding was undertaken pursuant to People v. Williams, 14 N.Y.3d 198 (2010), solely to remedy the double jeopardy violation occasioned by the earlier 601-d resentencing that added post- release supervision. The post-release supervision was not 5 removed either pursuant to Penal Law § 70.85 or to avoid plea vacatur. In turn, in removing post-release supervision from Mr. Fagan’s sentence at that late date, the Williams proceeding did not produce a statutorily permissible sentence under Penal Law § 70.85 that could, per Pignataro, legitimately remedy the constitutional infirmity in the plea; it simply produced a sentence that, although statutorily unauthorized, no longer violated double jeopardy. The prosecution’s argument, that this unauthorized post-release supervision-free sentence could nonetheless remedy the defective plea, is just a repackaging of the kind of “sentencing fix” that this Court has previously, repeatedly, and unequivocally rejected as ineffectual to protect a defendant’s important due process rights. Indeed, it is a particularly unpersuasive one since Mr. Fagan actually served a period of post-release supervision. In any event, as established in Point IC below, the prosecution’s view that Penal Law § 70.85 is a means of “correct[ing] Catu issues going forward” (App. Br. at 17),1 even when the defendant has actually served a period of post- release supervision (App. Brief at 15), must be roundly rejected as it rests on the fiction that the removal of post- release supervision from Mr. Fagan’s sentence also eliminated “App. Br.” refers to Appellant’s Brief. Parenthetical1 references preceded by “A.” refer to Appellant’s Appendix. 6 Mr. Fagan’s actual service of it. It would require this Court to ignore its own unwavering pronouncements condemning Catu violations because they deprive a defendant of information vital to his decision to plead guilty. It would gut the due process imperative at Catu’s core, that a plea must be knowing and voluntary, if the constitutional violation could be wiped clean simply by doing away with post-release supervision “on paper” at a 601-d resentencing, when the defendant plainly pleaded guilty unaware of the true consequences, and then suffered them. Pignataro provides no support, as there, the defendant served not a day of post-release supervision before a sentence without post-release supervision was imposed. Pignataro served the very sentence he bargained for; Mr. Fagan did not. He served four years more than he ever bargained for. As discussed in Point II below, the prosecution’s claim that Catu is not “retroactive” lacks merit, as it misapplies the test set forth in People v. Catalanotte, 72 N.Y.2d 641 (1988), for assessing whether a prior conviction is unconstitutionally obtained and cavalierly assumes that Catu is a “new rule.” As we establish, however, and as the Second Circuit has long recognized in an analogous context, Catu was no such thing, but rather a case that unremarkably applied longstanding constitutional principles to a new situation. Its rule therefore applies in all cases. That some courts may 7 have been slow to realize that post-release supervision, like any other sentence, needed to be expressly mentioned at the plea, did not make Catu a new rule. STATEMENT OF FACTS A. Plea and sentencing proceedings in Ind. No. 261/00 Under New York County Ind. No. 0261/2000, Mr. Fagan pleaded guilty, on April 18, 2000, to attempted robbery in the first degree before the Honorable Harold Beeler. Attorney Frank Lomuscio represented Mr. Fagan (A. 64). The minutes from that plea proceeding have been lost (A. 64), but the prosecution has never disputed, and Mr. Fagan attested, that the court neglected to advise Mr. Fagan about post-release supervision at the plea (A. 65, 78). On May 23, 2000, Mr. Fagan was sentenced to seven years of imprisonment (A. 5-8). At that proceeding, the prosecution asked the court to “rely on the promise” (A. 6), and Mr. Lomuscio similarly asked the Court to “abide by the promise made to Mr. Fagan at the time he entered this plea of guilty” (A. 7). The Court then sentenced Mr. Fagan, “as promised, to a term of imprisonment of seven years, determinate” (A. 7). There was no mention of post-release supervision. Mr. Fagan was released from prison on March 10, 2006 (A. 79), and began serving administratively imposed post-release supervision (A. 79). On January 28, 2009, at a Correction Law 8 § 601-d proceeding before Hon. Maxwell Wiley, Mr. Fagan was resentenced “to the original 7 years determinate followed by five years post-release supervision. That sentence is nunc pro tunc to the original date of sentence, which was May 23, 2000.” (A. 9-11). Prior to the resentencing, Counsel Lomuscio submitted a motion objecting to the resentencing on double jeopardy grounds, which the court denied (A. 10). However, on March 18, 2010, the court vacated Mr. Fagan’s term of post-release supervision, pursuant to People v. Williams, 14 N.Y.3d 198 (2010) (A. 65). B. Plea and sentence proceedings under Ind. No. 944/09 On June 21, 2010, Mr. Fagan pleaded guilty to one count of attempted robbery in the first degree under Bronx Co. Ind. No. 0944/09 (A. 70-72). Mr. Fagan was arraigned a mandatory persistent felon based upon two prior felonies, a 1980 conviction and the April 18, 2000 New York County conviction for attempted robbery in the first degree (A. 22-24). Defense counsel lodged no challenge to either prior conviction, and on July 6, 2010, the court sentenced Mr. Fagan to 18 years to life (A. 54). C. C.P.L. § 440.20 Litigation On January 16, 2013, Mr. Fagan, through counsel, filed a motion in the Supreme Court, Bronx County, pursuant to C.P.L. § 440.20, asserting (1) that his persistent violent felony offender sentence was illegally imposed and invalid as a 9 matter of law because the 2000 conviction was unconstitutionally obtained in violation of People v. Catu, 4 N.Y.2d 242 (2005); and (2) that counsel was ineffective for failing to so challenge it (A. 59-79). The motion included defense counsel’s sworn affirmation that he did not investigate whether the court had advised Mr. Fagan about post-release supervision at the 2000 plea, and that he would have challenged the conviction as being unconstitutionally obtained if he had known (A. 101). The prosecution’s sole argument in opposition maintained that, because the post-release supervision was ultimately removed from Mr. Fagan’s sentence “[p]ursuant to People v. Williams,” Mr. Fagan received “precisely what he had bargained for in 2000, when he originally pleaded guilty.” (A. 87). Accordingly, the prosecution argued, the 2000 conviction was not unlawfully obtained and trial counsel was not ineffective. (A. 88). In reply, Mr. Fagan disputed that the Williams vacatur cured the Catu violation, pointing out that the plea was unlawful at inception and not susceptible of cure by subsequent events (A. 96). Nor could the vacatur of post- release supervision accomplish specific performance of the plea because Mr. Fagan had served four years of post-release supervision (A. 96). On June 28, 2013, the lower court denied defendant's 10 C.P.L. § 440.20 motion (A. 102-105). By permission of Associate Justice Judith J. Gische, Mr. Fagan appealed the denial to the Appellate Division, First Department (A. 110). D. Fagan I The Appellate Division reversed the denial of Mr. Fagan's 440.20 motion, vacated Mr. Fagan's sentence, remanded for resentencing, and otherwise affirmed. See People v. Fagan, 116 A.D.3d 451 (1st Dep't 2014)(“Fagan I”). The Appellate Division agreed with Mr. Fagan that his trial 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 felony offender.” Fagan I, 116 A.D.3d at 452. The court rejected the prosecution’s “cure” argument, reasoning that the removal of the post-release supervision “could not cure the Catu error, or give defendant the benefit of the plea,” because he had already served four years of post-release supervision by that time and had also spent time in jail on a violation. Id. at 451. Thus, the court found “neither Penal Law § 70.85 nor People v. Pignataro ... has any applicability to the issues here.” Id. The court concluded that Mr. Fagan was “entitled to have his persistent felony offender status litigated with proper assistance of counsel, at a new adjudication and 11 sentencing.” Id. The People did not seek leave to appeal to this Court. At the resentencing proceeding conducted before Justice Villegas on May 21, 2014 (A. 111-27), the prosecution sought to file a new persistent violent felony offender statement incorporating the same 2000 attempted robbery predicate that was the subject of Mr. Fagan's successful appeal (A. 113-15). The “new” statement differed from the original one, the prosecution maintained, as it contained a sentencing or “judgment" date of 2000, not 2009, reflecting this Court’s decision in People v. Acevedo, 17 N.Y.3d 297 (2011)(A. 114- 15). This, the prosecution said, was information the Appellate Division “did not have before” (A. 115). The court rejected the prosecution’s argument and resentenced Mr. Fagan to a 15-year determinate term, with five years’ post-release supervision (A. 127). The prosecution filed a notice of appeal. E. The C.P.L. § 440.40 Litigation Before perfecting its direct appeal, the prosecution moved by way of C.P.L. § 440.40 to vacate the 15-year determinate sentence as illegal (A. 139). While the prosecution “maintain[ed] that vacatur of defendant’s PRS cured the sentencing defect in his 2000 New York County case pursuant to People v. Pignataro” (A. 140), its primary argument was, as it had argued at the resentencing proceeding, 12 that the prosecution could “utilize” the “2000” judgment, instead of the “illegal 2009” judgment (A. 140). In a footnote, the prosecution argued that Mr. Fagan’s “2000 sentence did not violate his rights under the law as it stood at that time and can, therefore, be used for predicate felony purposes” (A. 140, n.3)(citing People v. Catalanotte, 72 N.Y.2d 641, 643 (1988)). The prosecution further contended that it could not have raised this argument on Mr. Fagan’s appeal from the denial of his 440.20, because it was based on an “amended Persistent Violent Felony Information” which was a document “outside the record.” (A. 141). Mr. Fagan responded, inter alia, that the prosecution’s argument was procedurally barred under C.P.L. § 440.40(2) (A. 144-45), and that, in any event, Catu simply applied a well-established constitutional principle to the particular circumstance of PRS (A. 146, n.1). In a decision dated February 13, 2015, the lower court denied the prosecution’s motion, invoking the mandatory and discretionary bars in C.P.L. §§ 440.40 (2) and (3) (A. 148- 51). Specifically, C.P.L. § 440.40(2) mandated the motion's denial, because the Appellate Division “clear[ly]” determined that the 2000 conviction was defective and could not have been cured by the 2010 vacatur, and the “amended form” submitted by the People would not have changed that analysis (A. 150). Further, at the resentencing hearing, after hearing both 13 sides, the court found that Mr. Fagan was not a persistent violent felony offender. Therefore, even if C.P.L. § 440.40(2) were not applicable, C.P.L. § 440.40 (3) permitted the court to deny the motion because it had itself “previously determined” the issue “on the merits upon a prior ... proceeding” (A. 150-51). F. Fagan II On the prosecution’s consolidated appeal from Supreme court’s judgment of resentence and its denial of the prosecution’s 440.40 motion, the Appellate Division affirmed the lower court and rejected the prosecution’s attempt to undo the resentence. People v. Fagan, 134 A.D.3d 411 (1st Dep’t 2015)(“Fagan II”). The court referenced its earlier decision in People v. Smith, 132 A.D.3d 511 (1st Dep’t 2015), leave granted to the People, 26 N.Y.3d 1150 (2016)(joined with Mr. Fagan’s case on this appeal), and held that “Catu applies retroactively.” Fagan II, 134 A.D.3d at 412. The court2 reiterated that the Catu error “was not cured by subsequent events,” namely the judicial imposition of post-release supervision in 2009, and its removal in 2010 pursuant to People v. Williams. Id. The court again noted that Mr. Fagan The court additionally found that the People’s argument that2 a Catu error does not violate the Federal Constitution was “improperly raised for the first time in their reply brief,” and “without merit in any event.” Fagan II, 134 A.D.3d at 412; see also Appellate Division order M 4190 (granting motion to strike reply brief argument raised for the first time on reply). 14 had “served more than four years of PRS, as well as being jailed for a violation thereof.” Id. A Judge of this Court granted the People leave to appeal to this Court (A. 1). ARGUMENT POINT I MR. FAGAN’S PLEA VIOLATED CATU, A DEFECT THAT THE REMOVAL OF POST-RELEASE SUPERVISION PURSUANT TO PEOPLE V. WILLIAMS, AFTER HE HAD SERVED FOUR YEARS OF IT, DID NOT, AND COULD NOT, REMEDY. AS SUCH, HIS CONVICTION WAS UNCONSTITUTIONALLY OBTAINED AND WAS PROPERLY EXCLUDED BY THE COURT FROM PREDICATE USE AT HIS RESENTENCING IN THE INSTANT MATTER. Mr. Fagan’s 2000 Catu-defective conviction was properly excluded by the resentencing court from being used to enhance his sentence in the instant case, as it was obtained in violation of his constitutional rights. Contrary to the prosecution’s argument to this Court, the Williams proceeding (People v. Williams, 14 N.Y.3d 198 (2010)), conducted to stop the ongoing double jeopardy violation effected by the court’s addition of post-release supervision to Mr. Fagan’s sentence in 2009, could not remedy the original constitutional infirmity in the plea because it left in place a statutorily unauthorized sentence, albeit one that did not continue to violate double jeopardy. Such an illegal sentence could not, under any circumstances, legitimize the plea, as a 15 resentencing pursuant to Penal Law § 70.85 can accomplish under certain circumstances (see Point IB). Even if the removal of post-release supervision under Williams could be likened to “imposing” the original determinate sentence under Penal Law § 70.85, the constitutional infirmity would still persist, as Mr. Fagan, having served four years of post-release supervision, including time spent in jail on a violation, could not possibly be said to have pleaded guilty aware of the consequences of the plea. For this reason, People v. Pignataro, 22 N.Y.3d 381 (2013), which found that the defendant’s resentencing under Penal Law § 70.85 remedied the Catu error, is both distinguishable and instructive. Defendant Pignataro pleaded guilty aware only that his sentence would be 15 years, and his lawful sentence, imposed before he served a day of post-release supervision, was 15 years. He pleaded guilty, as this Court observed, aware of the true and accurate direct consequences of his plea, rendering it knowing and voluntary. In contrast, Mr. Fagan was not only unaware of the consequence of post-release supervision when he pleaded guilty, but then suffered that very consequence. His plea, constitutionally infirm when taken, remained so at his 2014 resentencing, as the Appellate Division properly held in Fagan II in upholding that resentence (see Point IC). 16 A. The Applicable Law In People v. Catu, 4 N.Y.3d 242, 245 (2005), this Court held that a defendant pleading guilty “must be aware of the post-release supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action.” A Catu-infected plea thus violates due process. See id.; People v. Hill, 9 N.Y.3d 189, 193 (2007). Accordingly, this Court has repeatedly rejected purported “remedies” that sought to fulfill the defendant’s sentencing expectations or give him the benefit of the bargain, as those fixes could not “undo the prejudice” of the due process violation. See, e.g., Hill, 9 N.Y.3d at 192-93; People v. Van Deusen, 7 N.Y.3d 744 (2006). Mr. Fagan’s 2000 plea to attempted robbery violated Catu, as the court failed to advise him that his sentence would include post-release supervision. The court’s obligation with respect to sentence is equally clear; it is “the sentencing judge — and only the sentencing judge” who “is authorized to pronounce the PRS component of a defendant’s sentence.” Matter of Garner v. New York State Dept. Of Correctional Servs., 10 N.Y.3d 358, 362 (2008). Accordingly, when the sentencing court fails to pronounce the post-release supervision component of a sentence, the “sole remedy...is to vacate the sentence and remit for a resentencing hearing so that the trial judge can 17 make the required pronouncement.” People v. Sparber, 10 N.Y.3d 457, 471 (2008). Merely expunging or excising the post- release supervision would result in “a sentence not in compliance with the statute.” Id. The sentencing court here did not pronounce a period of post-release supervision at Mr. Fagan’s 2000 sentencing. At a resentencing proceeding for judicial pronouncement of post-release supervision, Penal Law § 70.85, effective June 30, 2008, permits the court “on consent of the district attorney” to “reimpose the originally imposed determinate sentence of imprisonment without any term of post-release supervision, which then shall be deemed a lawful sentence.” (Emphasis added). Penal Law § 70.85 was enacted to “avoid the need for pleas to be vacated” (Governor’s approval Mem., Bill Jacket, L. 2008, ch. 141 at 5-5, 2008 N.Y. Legis. Ann. At 106), as would be the defendant’s right upon imposition of a term of post-release supervision that deviated from his awareness of the terms of the plea. As this Court stressed in People v. Pignataro, 22 N.Y.3d 381 (2013), it was the lawfulness of the sentence under Penal Law § 70.85 that made it a permissible remedy for the Catu defect in that case; “[d]efendant’s plea was knowing and voluntary because the legislature has changed the sentencing laws governing pleas vulnerable to a Catu challenge. Section 70.85 ensures that defendant, who is no longer subject to PRS, pleaded guilty 18 with the requisite awareness of the direct consequences of his plea.” Id. at 387. A sentence pursuant to Penal Law § 70.85 thus differs from the “creative reimagining[s]” of the plea deal that this Court previously rejected. Post-release supervision having not been pronounced at Mr. Fagan’s 2000 sentence, Mr. Fagan was recalled to court in January 2009 for the court to do so. By then, Mr. Fagan had been released from prison and had served almost three years of administrative (and thus unlawfully imposed) post-release supervision. Penal Law § 70.85 was not mentioned nor invoked at the resentencing, and Mr. Fagan was not offered the opportunity to withdraw his plea. The court sentenced Mr. Fagan to five years’ post-release supervision, over defense counsel’s objection that such belated imposition violated double jeopardy. When a sentencing court has failed to pronounce post- release supervision and the defendant has been released from prison, however, “the Double Jeopardy Clause prevents reformation to attach a post-release supervision component to the original completed sentence.” People v. Williams, 14 N.Y.3d 198, 217 (2010). “Even where a defendant’s sentence is illegal, there is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired).” Id. Although the resulting sentence, expunged of post-release 19 supervision is neither legal nor authorized, it is allowed to stand to accommodate Double Jeopardy protections. See Williams, 14 N.Y.3d at 219 (“Once a defendant is released from custody ... there is a legitimate expectation that the sentence, although illegal under the Penal law, is final and the Double Jeopardy Clause prevents a court from modifying the sentence to include a period of postrelease supervision.”); Sparber, 10 N.Y.3d at 471 (noting that simply expunging PRS would allow service of a statutorily unauthorized sentence). Here, pursuant to Williams, the court removed Mr. Fagan’s post-release supervision in March 2010 — as it should have done over a year earlier on defense counsel’s motion — resulting in an illegal sentence, but one that did not violate double jeopardy. By then, Mr. Fagan had served some four years of post-release supervision. B. A Williams Proceeding Can Stop an Ongoing Double Jeopardy Violation but Cannot Remedy a Catu Defect. Under the controlling precedents discussed above, it quickly becomes apparent that the removal of Mr. Fagan’s post- release supervision in March 2010 could not remedy his plea under any circumstances, as it was not removed pursuant to Penal Law § 70.85 or to achieve its aims, but in deference to the Double Jeopardy Clause. Critically, its removal resulted not in a lawful sentence — the distinguishing feature of a Penal Law § 70.85 sentence — but in an unlawful one that was 20 nonetheless permitted to stand. As the legitimacy of Penal Law § 70.85 as a remedy for Catu-defective pleas rests on its creation of lawful post-release supervision-free sentence, see Pignataro, 22 N.Y.3d at 387, removal of post-release supervision at a Williams proceeding can provide no such remedy, as it produces the direct opposite — an unlawful sentence that must be countenanced because of double jeopardy. The prosecution elides this crucial distinction. It mistakenly states that the Williams proceeding “continu[ed] the original sentence pursuant to § 70.85” (App. Br. at 4); that “the PRS defect was cured by defendant’s subsequent resentencing pursuant to Penal Law § 70.85” (App. Br. at 14); that there was a “rectifying Penal Law § 70.85 proceeding” (App. Br. at 15); and that “defendant’s 2000 conviction was rendered lawful by the 2010 Penal Law § 70.85 proceeding” (A. 17). As established above, however, there was no “§ 70.85 proceeding” here. Mr. Fagan was not “resentenced” to a sentence without post-release supervision, nor was his original sentence “continued” pursuant to Penal Law § 70.85. All that happened was that the previously imposed post-release supervision was removed because it violated double jeopardy. As the sentence that resulted from this Williams proceeding was illegal, it could not possibly, like a § 70.85-approved sentence, render Mr. Fagan’s plea knowing and voluntary on the theory that “the legislature has changed the 21 sentencing laws governing pleas vulnerable to a Catu challenge.” Pignataro, 22 N.Y.3d at 387. The “remedy” the prosecution peddles is simply another “creative reimagining” of sentence of the kind previously rejected by this Court as unable to cure the due process violation infecting the plea. See, e.g., Hill, 9 N.Y.3d at 192 (finding plea defective where the trial court ultimately resentenced the defendant to a total period of incarceration plus post-release supervision equal to his originally promised sentence); Van Deusen, 7 N.Y.3d at 745-46 (plea vacatur required where the sentence imposed exposed the defendant to a shorter total period of punishment than the court had originally promised). Indeed, the prosecution’s proposed “fix” here has even less appeal than the unsatisfactory remedies in Hill and Van Deusen, as those defendants, at least, had not actually served any post- release supervision when the remedies were attempted. (As argued in Subpoint C, below, Mr. Fagan’s actual service of post-release supervision independently mandates affirmance of the decision below.) Accordingly, this Court should reject the prosecution’s claim that the removal of post-release supervision from Mr. Fagan’s sentence at the Williams proceeding “cured” the Catu violation and affirm the Appellate Division’s decision. 22 C. In Any Event, as Mr. Fagan Actually Served a Period of Post-Release Supervision, Its Subsequent Removal Could Not Render the Plea Lawful. Assuming, for the sake of argument, that expunging post- release supervision pursuant to Williams could be likened to a Penal Law § 70.85 sentence, it would do the prosecution no good here, because Mr. Fagan actually served a good part of the sentence he was never told about — some four years of post-release supervision, including time in jail. The Appellate Division properly identified that fact as crucial to its determination that the removal of post-release supervision could not cure the original Catu defect. Penal Law § 70.85, as discussed above, provides a permissible remedy for a Catu defect by providing for a lawful sentence that comports with the defendant’s “awareness of the direct consequences of his plea.” Pignataro, 22 N.Y.3d at 387. Pignataro had received a 15-year determinate sentence in February 2001 and was brought to court for a 601-d resentencing in May 2010, years before his release. See 22 N.Y.3d at 384. Under those circumstances, this Court stated that Penal Law § 70.85 “ensures that defendant, who is no longer subject to PRS, pleaded guilty with the requisite awareness of the direct consequences of his plea.” Id. at 387 (emphasis added). Pignataro pleaded guilty aware only that his sentence would be 15 years, and his lawful sentence (per Penal Law § 70.85) comported with that awareness. Had Pignataro 23 served even a day of post-release supervision, that observation would not hold, for regardless of the ensuing “legality” of the sentence, he would not have pleaded guilty with the “requisite awareness of the direct consequences of his plea.” Accordingly, Pigantaro’s re-sentencing to a lawful sentence without post-release supervision, before he ever served any, was not merely another “creative reimagining” of the terms of the plea, but instead assured that his guilty plea was knowing and voluntary from the outset. In contrast, whatever the “paper” effect of the 2010 vacatur in terms of “matching” Mr. Fagan’s ultimate sentence to the plea, Mr. Fagan did not plead guilty, as Mr. Pignataro did, with the “requisite awareness of the direct consequences of his plea.” Mr. Fagan, instead of serving just the determinate sentence of seven years he was promised, served four years of post-release supervision, even spending time in jail because of a violation of this post-release supervision. Post-release supervision was not some phantom sentence. It placed significant restrictions on Mr. Fagan’s life and led to his incarceration. The “continu[ation]” of “the original sentence” (App. Br. at 4), as the prosecution terms the Williams proceeding, could not turn back the clock to undo that service. It merely ended the ongoing double jeopardy violation by lopping off the remaining post-release supervision. Unlike in Pignataro’s case, Mr. Fagan’s ensuing 24 post-release supervision-free sentence, even if legal (but see Point IB, ante), came too late to rescue or legitimize the plea. Accordingly, the prosecution’s disclaimer of any 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” (App. Br. at 15), lacks any merit. The mere removal of post-release supervision in 2010 could not possibly render Mr. Fagan’s plea knowing, voluntary, and intelligent. Mr. Fagan pleaded guilty unaware of the post-release supervision he went on to serve, and the prosecution’s facile reasoning — that any removal at any time of post-release supervision from a defendant's sentence validates the plea — closes its eyes to reality and obliterates the linchpin of this Court's reasoning in Pignataro, as well as the due process concerns that animated Catu and the cases that followed. People v. Acevedo, 17 N.Y.3d 297 (2011) and People v. Boyer, 22 N.Y.3d 15 (2013)(App. Br. at 15-18), are inapposite and provide no support for the prosecution’s position. To begin, the prosecution incorrectly describes those cases as “uph[olding]” prior convictions despite Catu error (App. Br. at 15). In fact, neither case concerned the constitutionality 25 of the defendant’s plea; each involved the sequentiality effect of corrective Sparber resentencings, together holding that a Sparber resentencing, whether initiated by the defendant or the State, does not re-set the date of sentence. In any event, the prosecution betrays its contempt for the constitutional concerns at issue here in analogizing Mr. Fagan’s predicate challenge to a Sparber resentencing. The two are nothing alike. This Court’s reasoning in Acevedo and Boyer was predicated on the proceeding’s limited purpose of merely adding post-release supervision to the original sentence. See Boyer, 22 N.Y.3d at 25. While the defendants in Acevedo and Boyer were thus seeking relief from an enhanced sentence on the basis of a proceeding whose purpose was to correct a “clerical error,” Boyer, 22 N.Y.3d at 24 (citing People v. Lingle, 16 N.Y.3d 621 (2011)), Mr. Fagan made a weighty and significant constitutional challenge to his conviction. This Court has time and again referenced the important due process concerns at the heart of Catu, so significant as to warrant plea vacatur. This Court in Boyer emphasized that recidivist sentencing statutes are meant to enhance the sentences of defendants “who refuse to reform after receiving a valid conviction for a crime . . . .” 22 N.Y.3d at 36. Even the authority on which the prosecution relies recognizes that a “valid conviction” is a condition precedent to an enhanced sentence. 26 Nor does the prosecution’s criticism of Mr. Fagan for not having previously sought “to either withdraw his guilty plea or vacate his sentence” (App. Br. at 16) deserve any credence. The prosecution fails to mention that Mr. Fagan was never given an opportunity to withdraw his plea at the 2009 resentencing. Nor would it have made any sense for him to have sought plea vacatur at that late date, years after he had been released from prison and had already served a substantial portion of the unlawfully-imposed post-release supervision. In an analogous situation, this Court has found that vacating a defendant’s plea in such a circumstance “would not make the defendant whole again.” People v. McConnell, 49 N.Y.2d 340, 347-48 (1980). “[M]erely undoing the plea,” where the defendant has served the entirety of the sentence, “is small compensation, if any.” Id., quoting In re Chaipis v. State Liq. Auth., 44 N.Y.2d 57, 65 (1978). “Once the defendant has been placed in such a ‘no-return’ position, relegating him to the remedy of vacatur of his plea cannot restore him to the status quo ante.” People v. Danny G., 61 N.Y.2d 169, 175-76 (1984). In any event, as an unconstitutional predicate conviction may not be used to enhance punishment for another offense, see People v. Harris, 61 N.Y.2d 9, 16 (1983); C.P.L. §§ 400.15(7)(b), 400.16(2), it matters not whether a prior appeal was taken from the constitutionally-infirm conviction. See 27 Harris, 61 N.Y.2d at 16 (“an alleged second or third felony offender could question the validity of the predicate conviction at the time he was resentenced”); People v. Santiago, 91 A.D.3d 438 (1st Dep’t 2012)(“Defendant’s failure to appeal the 2004 conviction did not constitute a forfeiture of this right to independently challenge its constitutionality within the context of a predicate felony proceeding.”); People v. Abdus-Samad, 69 A.D.3d 516, 517 (1st Dep’t 2010)(same); see also People v. Smalls, 26 N.Y.3d 253, 261 (2015)(refusing to require that prior convictions have been “subsequently invalidated or vacated” so as to be excluded form the tolling provisions for predicate felonies). Indeed, by pleading guilty in 2000 and taking no appeal, Mr. Fagan spared State resources while facilitating the conviction’s finality. The 601-d and Williams proceedings that followed were due to State error, not defense machinations. It was because the court ignored Mr. Fagan’s double jeopardy objection that the Williams proceeding was even necessary at all. It is no “end run” (App. Br. at 17) for Mr. Fagan, who suffered both an unlawful conviction and sentence, to exercise his statutory and due process rights to a lawful sentence in the instant case. Also unconvincing is the prosecution’s prediction that distinguishing between defendants who have served post-release supervision from those who have not will present 28 “complications” for the criminal justice system (App. Br. at 18). Certainly there are none that should concern the prosecution. Once the prosecution files the requisite statement listing the predicate felony or felonies, the burden falls on the defendant to “controvert an allegation with respect to such conviction ... on the grounds that the conviction was unconstitutionally obtained.” C.P.L. § 400.15(7)(b). Any such challenge — not one limited to Catu defects — would generally require obtaining minutes to establish the violation, but the burden to do so falls on the defense, and if the defense is unable to substantiate its claim through minutes or otherwise, the challenge will fail. See, e.g., People v. Harris, 61 N.Y.2d 9 (1983)(rejecting predicate challenges as insufficiently established by the defense). Determining whether a particular defendant has served any post-release supervision, a task again falling on the party asserting the constitutional challenge, is a simple matter. The website maintained by DOCCS and publicly available, will show if and when the defendant was released from custody to begin serving supervised release. The Office of Court Administration’s computer database (or the court file itself) will show whether and when a 601-d resentencing took place. These tasks should take about ten minutes. A defense attorney could thus readily discern whether a corrective 601-d 29 resentencing occurred, as in Mr. Fagan’s case, while the defendant was serving post-release supervision, or, like defendant Pignataro, before his release. The prosecution also greatly exaggerates the “floodgates” effect of upholding Mr. Fagan’s resentence. To put its apocryphal concern in perspective, while the prosecution cites “‘as many as 30,000 criminal defendants’” whose pleas Catu affected (App. Br. at 19, n.10), a comprehensive Westlaw search in the years following Catu up to the present time revealed fewer than 100 cases where defendants on appeal actually sought and obtained plea vacatur. The predicate challenge involved here would open no floodgates either, as it would be available only to those defendants who pleaded guilty without being told about post-release supervision — an erroneous practice that began no earlier than 1998 and ended no later than 2005; who went on to serve post-release supervision; and who then sustained yet another conviction where the prosecution utilized the Catu-defective plea for the first time to enhance the defendant’s sentence. This trifecta significantly limits the availability of the challenge Mr. Fagan asserted, while promising at least the possibility of relief to those individuals who not only pleaded guilty unaware of the true consequences of their guilty plea but suffered the consequences of that error by serving post- release supervision. Neither the interests of judicial 30 economy nor justice support preventing these individuals from seeking such relief. Accordingly, this Court should affirm the decision below. POINT II AS CATU APPLIED A WELL-ESTABLISHED CONSTITUTIONAL PRINCIPLE TO A NEW CIRCUMSTANCE, IT WAS NOT A “NEW RULE” AND WAS PROPERLY APPLIED TO MR. FAGAN’S 2000 CONVICTION. The prosecution is correct insofar as People v. Catalonotte, 72 N.Y.2d 641 (1988), establishes the relevant test for determining whether a predicate was “unconstitutionally obtained” for purposes of enhanced sentencing. Under that test, a court must determine whether the conviction was obtained in violation of the defendant’s rights as defined “by the law at the time of the conviction or by present law which is properly applied to it under recognized principles of retroactivity.” Id. at 643. However, the prosecution’s analysis falters in every other respect. The prosecution mistakenly assumes that because Catu was decided in 2005, the “law at the time of the [2000] conviction” did not require courts to advise defendants about post-release supervision (App. Br. at 21). However, at the3 The prosecution also attempts to insert an argument3 challenging the federal constitutional basis of Catu (App. Br. at 21 22). That argument is beyond this Court’s review as the prosecution never raised it in the proceedings below, either at the resentencing proceeding nor in their 440.40 motion. See People v. 31 time that Mr. Fagan pleaded guilty in April 2000, the law requiring that a guilty plea be entered voluntarily and that a defendant be advised of its direct consequences was already well-established. In 1969, in Boykin v. Alabama, 395 U.S. 238, the Supreme Court held that it was error for a trial court to accept defendant’s guilty plea without an affirmative showing that the plea was knowing and voluntary. In 1995, in People v. Ford, 86 N.Y.2d 397, this Court reaffirmed this principle, explaining that, in order for the plea to be knowing and voluntary, a defendant must be advised of the “direct consequences” of his guilty plea, and defining “direct consequences” as those which have “a definite, immediate and largely automatic effect on defendant’s punishment.” Id. at 403. That constitutional precept has been in place long before the prior offense at issue. See also Hill v. Lockhart, 474 U.S. 52, 56 (1985); Mabry v. Johnson, 467 U.S. 504, 508-09 (1984); North Carolina v. Alford, 400 U.S. 25, 31 (1970); McCarthy v. United States, 394 U.S. 459, 466 (1969). In Catu, this Court merely confirmed that principle in the particular context of sentence, a matter which, more than Callendar, 90 N.Y.2d 831, 832 (1997). This Court cannot review questions raised for the first time on appeal. The prosecution’s attempt to raise this unpreserved argument in their reply brief in the Appellate Division was also rejected by that court. See n.3, ante. In any event, should this Court entertain the argument, Mr. Fagan incorporates all arguments made by Respondent Roni Smith on this issue, at pp. 13 31 in the Brief for Defendant Respondent, in People v. Smith, also before this Court. 32 most, has a “definite, immediate and largely automatic effect” on the punishment. Noting that post-release supervision was a direct consequence of a criminal conviction, Catu,4 N.Y.3d at 244, the Court unremarkably found that the failure of the trial court to advise the defendant of post-release supervision required reversal, id. at 245. In finding post-release supervision a direct consequence, the Court did not create new law. At the time, and effective since 1998, Penal Law § 70.45 provided that “[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision.” L.1998, ch. 1, § 15 (eff. Aug. 6, 1998). The Catu Court neither overturned nor called into doubt any of its precedents; rather, it simply relied on Ford in finding that the court committed error and that reversal was required. 4 N.Y.3d at 245. As existing law required the result in Catu, it is necessarily applicable to cases that pre-date the ruling. Catalonotte itself provides an instructive contrast, for there, the prior conviction subject to challenge was defective only in light of a subsequent decision that unquestionably broke with prior precedent. At the time of the defendant’s predicate conviction, the practice at issue — the summary closure of the courtroom for a police officer witness — was in complete “compli[ance] with the existing legal requirements for a public trial.” Id. at 645 (citing, People v. Hinton, 31 33 N.Y.2d 71 (1972); People v. Hagan, 24 N.Y.2d 395 (1969); People v. Jelke, 308 N.Y. 56 (1954)). Catalonotte’s own conviction was upheld by this Court on direct appeal See id.; citing People v. Catalonotte, 36 N.Y.2d 192 (1975). It was four years later, in People v. Jones, 47 N.Y.2d 409 (1979), that this Court “declared for the first time that the summary closing of a courtroom simply because a witness is an undercover police officer constitutes reversible error.” Catalonotte, 72 N.Y.2d at 643-44. Under such circumstances, this Court declined to apply the “Jones” rule to invalidate the predicate conviction. Id. at 646. The situation here could not be more different, where Catu, unlike Jones, was simply an unexceptional application of precedent and its ruling “required” by such precedent, Catu, 4 N.Y.3d at 245. Catu did not overrule any prior law, or even deviate from it. The opinion, a unanimous, six-paragraph decision, did not contain a single signal cite (“cf.” or “compare” or “but see”) that would suggest it was departing from prior precedent, let alone any analysis distinguishing its prior cases — no doubt because there were no cases approving a court’s failure to advise a defendant of a mandatory component of his sentence. Cf. Catalanotte, 72 N.Y.2d at 645 (lower court acted in compliance with existing precedent at the time of the predicate trial); Jones, 47 N.Y.2d at 414 (distinguishing prior precedent and setting 34 forth methodology for determining closure). “[T]he law did not change when Catu was decided in 2005, and defendant’s due process right to notice of the PRS portion of his sentences ‘exist[ed] at the time [his] conviction[s were] obtained.’” People v. Province, 47 Misc. 3d 286, 298 (Sup. Ct. N.Y. Co. 2015), quoting Catalanotte, 72 N.Y.2d at 645 (alterations in original). That some courts were mistakenly or inadvertently failing to advise defendants about post-release supervision in the years before Catu does not mean that Catu “changed the law.” It means that such courts were failing to comply with the law that existed at the time — e.g., Boykin and Ford – and that this Court, through its ruling in Catu, corrected that flawed practice. In fact, the prosecution is unable to cite to any law that would have sanctioned a court’s failure in the year 2000 to advise a defendant about a significant component of his sentence; the few lower court cases it does cite (App. Br. at 24), all post-date Mr. Fagan’s conviction and do not hold otherwise. To the extent the prosecution offers those cases to suggest that Catu broke new ground in providing for reversal without a showing of harmless error (App. Br. at 24), its argument is again incorrect. Courts have long recognized that the remedy for the failure to advise defendants of significant and direct consequences of their convictions has been plea vacatur. See, e.g., Boykin, 395 U.S. at 244 35 (vacating the plea “because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty”); McCarthy, 394 U.S. at 466 (“if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void”); People v. Lopez, 71 N.Y.2d 662, 666 (1988) (finding that when a defendant’s factual allocution negates an essential element of the offense, the plea may be vacated on direct appeal); In re Chaipis v. State Liq. Auth., 44 N.Y.2d 57, 63-64 (1978) (“If the plea be coerced, or if defendant’s knowledge of its consequences be not explored sufficiently, the plea may be subject to vacation on proper and timely motion.”). People v. Nixon, 21 N.Y.2d 338 (1967)(App. Br. at4 24), does not assist the prosecution either, as its holding was that no particular catechism is required at a guilty plea. No reversal was warranted because no due process violation occurred. Put simply, if a plea is involuntary, the plea is subject to vacatur. Catu simply confirmed that the remedy for an unknowing plea is vacatur of that plea. That it did so See also People v. Conceicao, 26 N.Y.3d 375, 384 (2015)4 (vacating plea without discussion of harm “[b]ecause the totality of the circumstances in Conceicao reveal that defendant did not have an opportunity to discuss the plea with his attorney or consider its consequences, [thereby rendering] his plea . . . invalid.”); People v. Tyrell, 22 N.Y.3d 359, 366 (2013) (“Put simply, the records in these cases are inadequate to uphold the judgments of conviction and, contrary to the dissent’s position, the pleas must be vacated.”). 36 without fanfare further supports the unexceptional nature of the remedy. Reference to Jones is again instructive by way of contrast. There, this Court explained at length, with citations to Supreme Court law, law review articles, and authority from other states, why the new public-trial right it was upholding was not subject to harmless error analysis. See 47 N.Y.2d at 415-16. No such extended discussion is to be found in Catu, because none was necessary; vacatur of an involuntary plea was a long-settled remedy, and vacatur of defendant Catu’s plea broke neither new nor controversial ground. For the same reasons, Catu is not a “new rule,” as the prosecution also claims (App. Br. at 23). Catu therefore applies “retroactively” to all cases. See People v. Eastman, 85 N.Y.2d 265, 275 (1995); see also Yates v. Aiken, 484 U.S. 211, 216 (1988)(in retroactivity analysis, “it is necessary to determine whether a particular decision has really announced a ‘new’ rule at all or whether it has simply applied a well- established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law”)(internal quotations omitted). “[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague v. Lane, 489 U.S. 288, 301 (1989). 37 Holdings that “represent[] a dramatic shift away from customary and established procedure,” are what constitute new rules. People v. Mitchell, 80 N.Y.2d 519, 525 (1992). In turn, retroactivity analysis is appropriate for cases “departing radically from precedent,” see Ferguson v. United States, 513 F.2d 1011, 1012 (2d Cir. 1975)(citing, inter alia, Desist v. United States, 394 U.S. 244 (1969)), or “announcing new rules which conflict with well-established prior practice,” id. (citing, inter alia, Halliday v. United States, 394 U.S. 831, 832-33 (1969)). “But it is irrelevant to that application of well-established principles to varying fact situations which represents the bulk of judicial decision- making.” Id. at 1012-13. Following that analysis, the Second Circuit in Ferguson held that the federal decisional counterpart to Catu was not a new rule and applies to all cases. Ferguson considered the retroactivity of the 1974 Second Circuit decision in Michel v. United States, 507 F.2d 461, which held that “special parole” [the counterpart to post-release supervision] was a “consequence” of a guilty plea that trial judges had to inform defendants about under Federal Rule 11. The Ferguson Court found that Michel’s rule did not reach “the threshold of novelty which must be crossed before one enters upon the . . . retroactivity analysis.” Ferguson, 513 F.2d at 1012. Michel’s holding “merely stated what should long have been evident,” 38 indeed, the brevity of the opinion was itself “a clear indication that the court was hardly announcing a rule of such novelty that retroactivity analysis is called for.” Id. at 1012-13. Ferguson’s reasoning applies with equal force here. Catu “merely stated what should long have been evident” under Boykin and Ford. Even the decision itself — short and unanimous, like Michel — supported that no new ground was being broken. The prosecution’s convoluted retroactivity analysis (App. Br. at 23-27) is both unnecessary and irrelevant. Catu did not depart from past precedent at all, let alone “radical[ly],” but followed it and was required by it. Catu did not conflict with “well-established prior practice,” but implemented it in a varying factual situation. Established procedure required courts to state the sentence a defendant would serve under a particular plea prior to Catu. That some courts were failing to do so with respect to post- release supervision did not make it “customary and established procedure,” but a short-lived deviation from established procedure. The prosecution further ignores that “present law” applies Catu retroactively. See Catalanotte, 72 N.Y.3d at 643. Penal Law § 70.85 provides a remedy for Catu-defective pleas dating as far back as 1998. As discussed, that provision permits courts to resentence individuals without imposition of 39 post-release supervision in order to avoid the necessity of vacating those convictions pursuant to Catu. See Bill Jacket, 2008 Sen. Bill 8714, Ch. 141, Sponsor’s Memo. (“The bill also addresses an issue arising from the Court of Appeals decision in People v. Catu. When a defendant who pleads guilty has not been informed that the sentence would include a term of PRS, the defendant may later seek for the plea to be vacated. This bill allows the District Attorney to consent to re-sentencing to the previously imposed determinate term without any term of PRS. By allowing defendants in this situation the benefit of their plea bargains, there should be no need for the pleas to be vacated.”). As is clear from the legislation and its history, Catu was recognized as having applicability to all cases since the inception of post-release supervision in 1998. This Court has applied Catu retroactively. In Pignataro, the Court found that the 2000 plea violated Catu, see 22 N.Y.3d at 383, even though Pignataro’s direct appeal had been abandoned before Catu had been decided. See People v. Pignataro, 20 A.D.3d 892 (4 Dep’t 2005) (holding thatth Pignataro could not raise the Catu claim in his 2003 C.P.L. § 440.10 motion because of his unjustifiable failure to take or perfect an appeal during the prescribed period). Notably, none of the parties doubted that Catu applied to the 2000 plea. Surely this Court would not have considered the constitutionality of Penal Law § 70.85 if the matter could 40 easily have been disposed of by finding that the defendant’s 2000 plea was not infected by error. See Peters v. New York City Housing Auth., 307 N.Y. 519, 527 (1954) (“[I]t is well settled that issues of constitutionality should not be decided before they need be.”). As is evident, Catu has applicability to all cases dating back to 1998 when post-release supervision was added to determinate sentences. * * * In sum, Catu unremarkably applied the law in place at the time of Mr. Fagan’s conviction and its holding was perfectly consistent with it. It did not break with prior precedent, and announced no new rule. The decision was thus properly applied to invalidate Mr. Fagan’s 2000 predicate conviction, and the court properly resentenced him as a second violent felony offender. The decision of the Appellate Division should be affirmed. 41 CONCLUSION FOR THE REASONS SET FORTH ABOVE, THE DECISION BELOW SHOULD BE AFFIRMED. Respectfully submitted, ROBERT S. DEAN Center for Appellate Litigation Barbara Zolot Of Counsel July 27, 2016 42 PRINTING SPECIFICATIONS STATEMENT The brief was prepared in Wordperfect®, using a 12-point Courier (New) font, and totaled 9,130 words. 1A