People v. Dennis
| Decision Date | 18 July 2016 |
| Citation | 35 N.Y.S.3d 883,2016 N.Y. Slip Op. 26223,53 Misc.3d 255 |
| Parties | The PEOPLE of the State of New York v. Denise DENNIS formerly known as Andre Dennis, Defendant. |
| Court | New York Supreme Court |
New York County District Attorney Cyrus R. Vance, Jr. (Michael Kitsis, of counsel) for the People.
Robert S. Dean, Center for Appellate Litigation (Sara N. Maeder, of counsel) for the Defendant.
The Defendant pled guilty on May 1, 2013 to Attempted Assault in the Second Degree. On May 22, 2013 she was sentenced in accordance with the plea agreement to an indeterminate term of 2–4 years incarceration as a predicate felony offender. The Defendant now moves to vacate that sentence by this post-judgment motion pursuant to CPL § 440.20(1). She argues that the prior felony conviction relied upon to enhance her sentence in the instant case was unconstitutionally obtained and that defense counsel at the instant sentencing was ineffective when he failed to challenge the legality of that prior conviction. For the reasons set forth below the Defendant's motion is granted, the instant sentence is vacated and the Court has scheduled a new sentencing proceeding on July 28, 2016 at which a lawful sentence will be pronounced.
The Defendant was convicted of Burglary in the Second Degree by plea of guilty on February 1, 2000 in Onondaga County. That plea arose from initial charges of Burglary in the First Degree, Criminal Possession of a Weapon in the Third Degree and Menacing in the Second Degree. The minutes of this proceeding establish that no discussion occurred with respect to postrelease supervision (PRS) at either the Defendant's plea or sentencing. The Defendant was sentenced on that case in accordance with her plea to a determinate term of imprisonment of 2 years on February 16, 2000. She was subject to five years of postrelease supervision after the completion of her two year determinate sentence. The PRS term was administratively imposed by the Department of Corrections and Community Supervision.
Defense counsel in the instant case did not challenge the legality of the 2000 conviction at any point during the proceedings leading to the instant sentence. He has affirmed that he conducted no investigation and was unaware of any issue concerning the legality of that prior conviction. He further asserts that he had no strategic reason for not challenging the legality of the predicate conviction and would have challenged it had he been aware of the relevant issues. The 2000 conviction formed the basis for the finding that the Defendant was a predicate felon in the instant case. The Defendant is currently in custody serving the sentence imposed on the instant indictment.
Ms. Dennis was released from custody with respect to her 2000 conviction on September 20, 2001. According to the People, she was arrested more than 30 times for virtually all misdemeanor offenses over the next ten years. The instant conviction arose from conduct on November 1, 2011. According to the People, the Defendant while confined at a hospital, 1 Ms. Dennis was charged with Assault in the Second Degree and then pled guilty to Attempted Assault in the Second Degree.
At the time she pled guilty, the Defendant had a second pending second degree assault charge in Bronx County for an assault which allegedly occurred while she was confined at Rikers Island in 2012. It was anticipated at the time of her instant plea that the Bronx case would be resolved with a plea and a concurrent sentence. That, in fact, subsequently occurred and the Defendant was given a 2–4 year indeterminate sentence in the Bronx case to run concurrently with the instant conviction. While incarcerated on the instant case, the Defendant pled guilty to the Class E felony of Aggravated Harassment of an Employee by an Inmate and on October 23, 2014 received a promised indeterminate sentence of 1 ½ to 3 years incarceration for that conviction. In that case, it was alleged she spit blood at a prison attendant.
Since PRS is a mandatory component of the sentences to which it applies it is a direct, not collateral, consequence of a guilty plea and, as such, the court's failure to advise or inform a defendant of mandatory PRS requirements violates due process and requires the reversal of a conviction. People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 (2005)2 . The First Department has squarely addressed the issues in the instant motion, compelling the relief the Defendant seeks here. Those decisions can be best be understood chronologically.
In People v. Fagan, 116 A.D.3d 451, 983 N.Y.S.2d 28 (1st Dept.2014), the Court found that an attorney had provided ineffective assistance of counsel in not challenging the constitutionality of a pre-Catu conviction which the Defendant suffered in 2000 in which PRS was not pronounced. That 2000 conviction was then used as one of the predicate convictions which resulted in the Defendant's adjudication as a persistent violent felony offender in 2010. Fagan, like the instant case, considered a post-judgment collateral attack on the conviction. As in the instant case, the attorney in Fagan acknowledged that he did not have a strategic reason for not challenging the 2000 conviction and said that had he known the applicable law, he would have mounted such a challenge.
Fagan is significant in at least three respects. First, it was a ruling on the merits. Second, although the Court did not explicitly address whether Catu could be applied retroactively, Fagan did retroactively apply the decision to a post-judgment motion. Finally, the Court applied Catu retroactively to a post-judgment motion alleging the ineffective assistance of counsel, although the decision also vacated the Defendant's sentence on direct appeal with the two appeals (of Defendant's sentence and the denial of his post-judgment motion) considered together.
The Court next ruled on these issues in People v. Agard, 127 A.D.3d 602, 8 N.Y.S.3d 125 (1st Dept.2015). In Agard, the Court again vacated the Defendant's sentence based on defense counsel's ineffective assistance in not challenging a pre-Catu predicate sentence in which PRS was not pronounced which was then used to enhance the Defendant's instant sentence. The People had argued that Catu errors were not federal constitutional violations which would impact subsequent sentences, that Catu could not be retroactively applied and that therefore defense counsel had not been ineffective. The Court found those arguments unpreserved and declined to address “the merits of these issues on appeal”.
The First Department had obviously implicitly ruled on the merits of the Catu retroactivity issue a year earlier in Fagan. But the Court refused to reaffirm its views on the merits of the issue in Agard. In Agard, however, the Court also found Defendant's counsel ineffective and vacated his sentence. The Court could not possibly have reached that result unless they implicitly found Catu applied retroactively in Agard, as they implicitly did in Fagan.
The Court reached the same result in People v. Lara, 130 A.D.3d 463, 13 N.Y.S.3d 74 (1st Dept.2015) with still additional procedural caveats. The Lara Court first held that “[d]efense counsel rendered ineffective assistance at defendant's persistent felony offender adjudication” in not challenging a pre-Catu conviction in which PRS was not pronounced. It then said, however, that it was not deciding “whether a Catu -violative conviction may serve as a predicate felony” (citing Agard ). As in Agard, however, defendant's counsel could only have been ineffective if Catu applied retroactively. Finally, the Court said that it was holding “only” that “defendant is entitled to a hearing on the issue at which counsel can fully develop a record and arguments”. But the Court had already determined defense counsel provided ineffective assistance.
A clear position on the underlying issues came in People v. Smith, 132 A.D.3d 511, 17 N.Y.S.3d 701 (1st Dept.2015), lv. granted, 26 N.Y.3d 1150, 32 N.Y.S.3d 64, 51 N.E.3d 575 (2016). There the Court found that a predicate felony conviction which pre-dated Catu and did not include a PRS pronouncement was invalid for predicate felony purposes and could not be used to enhance an instant sentence. Smith again considered a post-judgment motion although not one alleging ineffective assistance. The Court explicitly found that Catu “implicates rights under the federal Constitution as well as the State constitution” and therefore meant a conviction which included a Catu error could not be counted by virtue of CPL provisions disallowing convictions obtained in violation of the United States constitution. citing CPL 400.15(7)(b). The Court held that “the rule of law announced in Catu applies retroactively to pre-Catu convictions.” Smith is also significant because it propounded a retroactivity rule in a case which (unlike Fagan ) considered only a collateral attack rather than a collateral attack and a direct appeal.
Finally, the Court revisited the Fagan case following a second appeal after a remand from the Court's original Fagan decision in People v. Fagan, 134 A.D.3d 411, 23 N.Y.S.3d 3 (1st Dept.2015) (“Fagan II ”). On remand, the trial court disregarded the 2000 conviction the Fagan Court had found invalid and adjudicated the Defendant as a second violent rather than persistent violent felony offender. Affirming the principles it had announced in Smith and Fagan, the Court upheld the sentence.
The Third Department also applied a variant of the same retroactivity rule although in a context very different than the...
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