One might expect an immediate reversal since this case appears to squarely fit within Catu's and Louree's framework. However, if anyone thought that, he would be wrong. In Boyd, the court analyzed the potential impact of Sparber and Garner on future Catu claims, questioned whether Penal Law § 70.85 was constitutional, and ultimately denied the requested relief, ordering the case for return to Supreme Court for litigation of the 70.85. The court said:
"This corrective action [vacatur of the plea] should not be entertained at this time because the constitutionality of this new provision and its applicability to this case have not been sufficiently developed for our review. Although a dissenting colleague believes that Penal Law § 70.85 is unconstitutional as applied to this case (see Pigott, J., dissenting op at 4), we recognize that the issue of whether the deficiency in the plea allocution can be rectified by granting defendant specific performance of the plea agreement—a determinate sentence without imposing a term of PRS—should be determined by Supreme Court in the first instance"This is an interesting outcome given the fact that Catu is less than five years old and given the fact that the defendant never requested any relief under Sparber (i.e. re-sentencing). The court did not overrule Catu, but it clearly refused to apply the case when faced nearly identical circumstances. Judge Pigott recognized this anomaly in dissent and stated:
"our holdings in Catu and Van Deusen and more recently in Hill make clear that a defendant is entitled to vacatur of his plea when the court commits a Catu error. Although I dissented in Hill, we are bound by this recent precedent. "Penal Law 70.85, designed to permit re-sentencing of almost every PRS mis-step, has thrown a monkey-wrench into the Court of Appeals' jurisprudence. Specifically, troublesome to the court is that portion of the statute which permits the court to impose a sentence that does not include PRS if the district attorney supports such a result. The court recognized that ultimately, the defendant's sentence could be one that does not include PRS, assuming the government agreed (as it appeared likely to do). Although neither the defendant nor the government sought re-setencing under this provision (or for any other reason), the court reversed and remanded "to give the People the opportunity to litigate their argument regarding the applicability of Penal Law § 70.85 and for defendant to assert any constitutional challenges to the operation of the statute".
It seems safe to say that the Court of Appeals is willing to hear constitutional challenges to the statute. Any takers?
