People v Coote

People v Coote 2016 NY Slip Op 08102 Decided on December 1, 2016 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 December 1, 2016
Friedman, J.P., Saxe, Moskowitz, Gische, Kahn, JJ.
1817 5769/10

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

v

Weston Coote, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Lawrence T. Hausman of counsel) and Kirkland & Ellis LLP, New York (Shireen A. Barday of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.

Order, Supreme Court, New York County (Michael R. Sonberg, J.), entered December 16, 2014, which denied defendant's CPL 440.20 motion to set aside his sentence as a second violent felony offender and to be resentenced as a first felony offender, unanimously affirmed.

Supreme Court correctly determined that defendant's CPL 440.20 motion was procedurally barred by this Court's prior affirmance, on the merits, of defendant's 2010 conviction and his adjudication as a second violent felony offender (CPL 440.20[2];

110 AD3d 485 [1st Dept 2013], lv denied 22 NY3d 1198 [2014]). Defendant's submission of additional evidence in support of his argument that his prior conviction was obtained in violation of People v Catu (4 NY3d 242 [2005]) does not constitute new grounds under CPL 440.20(2).

Moreover, on its merits, defendant's claim is unavailing in light of People v Smith (__ NY3d __, 2016 NY Slip Op 07106 [2016] [Catu not to be retroactively applied in predicate felony offender adjudication]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 1, 2016

CLERK