People v. Lara

• Decision Date: 06 December 2018
• Docket Number: 7825,7822,7821,Ind. 5117/08,7820,7823,7824
• Citation: People v. Lara, 167 A.D.3d 446, 89 N.Y.S.3d 154 (N.Y. App. Div. 2018)
• Parties: The PEOPLE of the State of New York, Respondent/Appellant, v. Jason LARA, Defendant–Appellant/Respondent.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 446

89 N.Y.S.3d 154

The PEOPLE of the State of New York, Respondent/Appellant,

v.Jason LARA, Defendant–Appellant/Respondent.

7820

7821

7822

7823

7824

7825

Ind. 5117/08

Supreme Court, Appellate Division, First Department, New York.

ENTERED: DECEMBER 6, 2018

Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), for appellant/respondent.

Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), for respondent/appellant.

Friedman, J.P., Kapnick, Webber, Kahn, Kern, JJ.

On a prior appeal from the 2012 judgment of conviction ( 130 A.D.3d 463, 13 N.Y.S.3d 74[1st Dept.2015] ), this Court found that defendant was entitled to have his persistent felony offender status litigated with proper assistance of counsel at a new adjudication and sentencing because of counsel's failure to ascertain that, in violation of People v. Catu,4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081(2005), defendant was not advised about postrelease supervision at the time of a 2001 plea, and by failing to litigate whether the Catu violation rendered that conviction unconstitutional for predicate felony purposes.We found defendant's excessive sentence claim to be academic because we were ordering a plenary sentencing proceeding.

On remand, the sentencing court determined that defendant no longer qualified as a persistent violent felony offender because his 2001 predicate conviction violated Catu .Defendant was resentenced accordingly.

The Court of Appeals thereafter held that Catu does not apply retroactively in enhanced sentencing proceedings ( People v. Smith , 28 N.Y.3d 191, 43 N.Y.S.3d 771, 66 N.E.3d 641[2016] ).Based on the Court of Appeals' decision in Smith , the sentencing court granted the People's CPL 440.40motion to set asidedefendant's resentence, and at the subsequent resentencing, the court reduced defendant's original 18–to–life sentence to 16 years to life.Defendant also made an unsuccessful challenge to the constitutionality of his 2001 predicate conviction on the ground that, notwithstanding the nonretroactivity of Catu 's automatic vacatur rule, he was actually prejudiced by the lack of a warning about postrelease supervision.

On defendant's appeal, he claims that he was entitled to a hearing on his prejudice-based claim that his 2001 plea was unconstitutionally obtained, and that 16–to–life resentence (the minimum permitted by law) constituted unconstitutional cruel and unusual punishment.On the People's appeal, they claim that the resentencing court was required to reimpose the original 18–to–life sentence.On these cross-appeals from the same judgment of resentence, albeit from different aspects thereof, each party is an "appellant" within the meaning of CPL 470.15(1), and we may thus review errors adversely affecting either party.

As for defendant's appeal, we find that his present challenge to the constitutionality of his 2001 conviction is barred by CPL 400.15(7)(b) because of his failure to raise this claim at the time of the 2012 sentencing proceedings.Furthermore, the 2017 resentencing court correctly determined that defendant's pre- Catu prejudice claim was refuted by the record of the 2001 proceedings and did not warrant an evidentiary hearing.We also find that sentencing defendant as a persistent violent felony offender was not unconstitutionally severe (seePeople v. Thompson , 83 N.Y.2d 477, 480, 611 N.Y.S.2d 470, 633 N.E.2d 1074[1994];People v. Broadie , 37 N.Y.2d 100, 371...