If a defendant was not advised of the post-release supervision component of his sentence before pleading guilty, it is unconstitutional for a court to consider that conviction for predicate felony purposes -- even if the conviction preceded the Catu decision.  At least, this is now true for courts within the First Department.

In its 2005 decision, People v Catu, the New York Court of Appeals made clear that post-release supervision is a direct consequence of a conviction and announced a new constitutional rule, that is: Before accepting a guilty plea, the court must advise the defendant of the post-release supervision component of his conviction (4 NY3d 242 [2005]).  Failure to do so is unconstitutional and requires reversal of the conviction (id.).

Five days ago, the Appellate Division, First Department, held that the rule of law announced in Catu applies retroactively to pre-Catu convictions (People v Smith, __ NYS3d __, 2015 NY Slip Op 07565 [Oct. 15, 2015]). 

The defendant in Smith brought a CPL 440.20 motion challenging his sentence as a second violent felony offender on the ground that his 2002 conviction was unconstitutional under Catu and therefore could not be counted as a predicate felony under CPL 400.15(7)(b).  Both the Supreme Court, New York County, and the Appellate Division, First Department, agreed.

Pursuant to New York's Criminal Procedure Law, "A previous conviction . . . which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction" (CPL 400.15[7][b]).  The First Department held that "a conviction obtained in violation of Catu implicates rights under the federal Constitution as well as the state constitution" and therefore cannot be counted as a predicate felony under CPL 400.15(7)(b) -- even if the plea was accepted before the Court of Appeals decided Catu.

The Smith decision is a huge success for the criminal defense bar.  

If not already doing so, defense attorneys representing defendants at sentencing should argue that the court cannot use a guilty plea as a predicate felony unless the defendant was advised of post-release supervision before pleading guilty -- even if the plea predated Catu.  Defense attorneys should also use Smith as a springboard to collaterally challenge predicate felony sentences where the predicate felony conviction was obtained in violation of Catu.

Not only that, because Catu applies retroactively, at least in the First Department, defense attorneys can seek to have guilty plea convictions predating Catu reversed where the defendant was not advised of post-release supervision before pleading guilty (and likely would not have pleaded guilty had he known of the post-release supervision).