People v. Coote (145 A.D.3d 431, 2016)

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 af-firmance, 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 (28 NY3d 191 [2016] [Catu not to be retroactively applied in predicate felony offender adjudication]).

Concur—Friedman, J.P., Saxe, Moskowitz, Gische and Kahn, JJ.