        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

511
KA 10-02099
PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KATISHA BEATY, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Erie County Court (Michael F.
Pietruszka, J.), rendered March 5, 2010. Defendant was resentenced
upon her conviction of manslaughter in the first degree.

     It is hereby ORDERED that the resentence so appealed from is
unanimously affirmed.

     Memorandum: Defendant filed a pro se motion pursuant to CPL
article 440 seeking to vacate the judgment of conviction and to set
aside the sentence on the ground that the plea was defective and the
sentence was illegal because she was never informed that she would be
required to serve a term of postrelease supervision (PRS). The People
conceded that the sentence was illegal and consented to County Court
resentencing defendant pursuant to Penal Law § 70.85 to the original
term of incarceration without PRS, which the court did. We granted
assigned counsel’s motion to be relieved as counsel and affirmed the
resentence, but the Court of Appeals reversed and remitted the matter
to us for a de novo appeal (People v Beaty, 96 AD3d 1515, revd 22 NY3d
490). We now affirm.

     Defendant contends that she should be given the benefit of the
law as it existed prior to the enactment of Penal Law § 70.85 and be
allowed to withdraw her plea. We reject that contention. The court
properly denied defendant’s request to vacate the judgment of
conviction and her plea of guilty and instead resentenced defendant to
the sentence for which she had originally bargained (see People v
Williams, 82 AD3d 1576, 1577, lv denied 17 NY3d 810). Indeed, we note
that the purpose underlying the enactment of section 70.85 was to
avoid vacaturs of pleas on the ground that they were involuntarily
made because of the court’s failure to advise of PRS at the time of
the plea (see People v Boyd, 12 NY3d 390, 393-394). Defendant’s
further contention that Penal Law § 70.85 constitutes an impermissible
ex post facto law is not preserved for our review (see Williams, 82
                                 -2-                           511
                                                         KA 10-02099

AD3d at 1578), and is without merit in any event (see People ex rel.
Mills v Lempke, 112 AD3d 1365, 1366, lv denied 22 NY3d 864, rearg
denied 23 NY3d 998; see also People v Pignataro, 22 NY3d 381, 387,
rearg denied 22 NY3d 1135).

     Defendant next contends that she was denied effective assistance
of trial counsel, assigned counsel on her direct appeal, counsel at
resentencing, and assigned counsel on her appeal from the
resentencing. To the extent that defendant raised her contention
regarding the alleged ineffectiveness of trial counsel in her CPL
article 440 motion, we conclude that it is without merit (see
generally People v Baldi, 54 NY2d 137, 147). Defendant’s contention
concerning the alleged ineffectiveness of appellate counsel on her
direct appeal is reviewable by way of a coram nobis proceeding (see
People v Latimer, 120 AD3d 1264, 1265; People v McKinney, 302 AD2d
993, 995, lv denied 100 NY2d 584). To the extent that such contention
is reviewable on this record (see McKinney, 302 AD2d at 995), we
conclude that it is also without merit (see People v Stultz, 2 NY3d
277, 285, rearg denied 3 NY3d 702). Appellate counsel cannot be
faulted for following the law as it existed at the time of the
representation (see People v Orcutt, 49 AD3d 1082, 1087, lv denied 10
NY3d 938). Finally, we conclude that defendant’s contention regarding
her counsel at resentencing and on appeal from that resentencing is
also without merit (see Williams, 82 AD3d at 1577). Defendant
contends that her counsel should have adopted her illegality argument
at the resentencing, but there is no denial of effective assistance of
counsel “arising from counsel’s failure to ‘make a motion or argument
that has little or no chance of success’ ” (People v Caban, 5 NY3d
143, 152; see also People v Feliciano, 17 NY3d 14, 28, rearg denied 17
NY3d 848).




Entered:   May 1, 2015                         Frances E. Cafarell
                                               Clerk of the Court
