Decided On : 11/1/2016
People v Fagan
Issue Before the Court: Can a Catu-defective plea be utilized to enhance a sentence for a subsequent crime?
Held: No (or, rather, maybe, see our last paragraph below). Since Catu does not apply retroactively in enhanced sentence proceedings, a plea pre-dating Catu, in which the court failed to apprise the defendant of post-release supervision cannot be the subject of a predicate-constitutional challenge simply on that ground. More specifically, although the law since at least People v. Ford, 86 N.Y.2d 397, 403 (1995), required that defendants be informed of the direct consequences of a guilty plea, which would include the post-release supervision component of a sentence, the law before Catu, the Court held, “also required that defects in plea allocution could not result in a reversal absent a showing of prejudice.” To the extent Catu provided for automatic vacatur, it was a new rule under federal and state retroactivity principles. (The Court assumed that Catu presented a violation of the United States Constitution.)
Judge DiFiore concurred, finding that the sentence each defendant originally received was exactly what he bargained for, a sentence without PRS, and therefore he had no predicate challenge at all.
Judge Rivera dissented. The Court’s retroactivity conclusion, Judge Rivera observed, was not supported by the case law, which clearly showed that Catu “was based on due process guarantees already well established in both federal and statue jurisprudence.” Judge Rivera also noted the inherent unfairness of sentence enhancements that would, in effect, require these defendants to “suffer anew” from the deprivation of due process which infected the prior conviction.
CAL Observes: We consider the majority’s holding outcome determinative and legally unsound. As Judge Rivera concluded, prior law from the Court itself did not support it. The Court’s lengthy retroactivity analysis is just cover; Catu should never have been found to be a new rule in the first place, in any respect, at all. Nor did the Court seemingly consider that upholding the predicate challenge would affect only a narrow group of defendants, or that mandatory persistent sentences with a life term — the type of sentence most likely to invite such predicate challenge — are among those that should withstand the most exacting scrutiny.
That said, the Court’s decision doesn’t even accomplish what the Court intended: slamming the door on Catu-based predicate challenges. In recognizing that the “Ford” aspect of Catu has long existed but that a showing of prejudice was required before Catu, the Court put the defense bar on notice of the constitutional challenge that can be mounted: where the lower court failed to advise the defendant of post-release supervision in a predicate plea, the predicate can be assailed on the ground that the court failed to fulfill its duty under Ford to advise the defendant about the direct consequences of that plea, and that the defendant would not have entered the plea had he known about PRS – a difficult, but not insurmountable showing to make, and one that should satisfy the prejudice showing that the law, according to the Court, required at the time of the plea.
AD1 order dated December 1, 2015, affirming, on the People’s appeal, the granting of defendant’s CPL § 440.20 motion. Decision below: 134 AD3d 411, 23 NYS3d 3. Pigott, J., granted leave to People April 12, 2016.
ISSUE PRESENTED: Whether Catu should be applied retroactively to invalidate, for use as a predicate, a conviction obtained prior to the Catu decision in 2005. (Assigned counsel for defendant: Barbara Zolot & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)
People v Fagan