People v. Coote

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.