People v Agard

People v Agard 2017 NY Slip Op 04399 Decided on June 6, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2017
Renwick, J.P., Richter, Feinman, Gische, Kahn, JJ.
4234/09 4179 4178

[*1]The People of the State of New York, Respondent,

v

Kenith Agard, Defendant-Appellant.



The People of the State of New York, Appellant,

v

Kenith Agard, Defendant-Respondent.

Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant/respondent.

Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan and Vincent Rivellese of counsel), for respondent/appellant.

Judgment of resentence, Supreme Court, New York County (Melissa C. Jackson, J.), rendered August 31, 2015, resentencing defendant, as a second felony offender, to consecutive terms of 12 years and 2 to 4 years, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and substituting a second violent felony offender adjudication, and otherwise affirmed.

Upon our remand for a new second violent felony offender adjudication and sentencing (127 AD3d 602 [1st Dept 2015]), the resentencing court determined that defendant's predicate violent felony conviction, which was obtained in violation of People v Catu (4 NY3d 242 [2005]), could not be used to enhance defendant's sentence, and it adjudicated him a second (nonviolent) felony offender on the basis of another predicate conviction, while reimposing defendant's original sentence. However, as defendant concedes, the subsequent decision of the Court of Appeals in People v Smith (28 NY3d 191 [2016]) precludes retroactive application of Catu to invalidate a sentence enhancement. Accordingly, defendant's original adjudication as a second violent felony offender was lawful.

As for defendant's appeal, we perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 6, 2017

CLERK