People v. Agard (151 A.D.3d 456, 2017)

Judgment of resentence, Supreme Court, New York County (Melissa C. Jackson, J.), rendered August 31, 2015, resentenc-ing defendant, as a second felony offender, to consecutive terms of 12 years and 2 to 4 years, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and substituting a second violent felony offender adjudication, and otherwise affirmed.

Upon our remand for a new second violent felony offender adjudication and sentencing (127 AD3d 602 [1st Dept 2015]), the resentencing court determined that defendant’s predicate violent felony conviction, which was obtained in violation of People v Catu (4 NY3d 242 [2005]), could not be used to enhance defendant’s sentence, and it adjudicated him a second (nonviolent) felony offender on the basis of another predicate conviction, while reimposing defendant’s original sentence. However, as defendant concedes, the subsequent decision of the Court of Appeals in People v Smith (28 NY3d 191 [2016]) precludes retroactive application of Catu to invalidate a sentence enhancement. Accordingly, defendant’s original adjudication as a second violent felony offender was lawful.

As for defendant’s appeal, we perceive no basis for reducing the sentence.

Concur—Renwick, J.P., Richter, Feinman, Gische and Kahn, JJ.