Opinion
84, 87.
Argued April 26, 2005.
Decided June 14, 2005.
APPEAL, in the first above-entitled action, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered September 23, 2003. The Appellate Division affirmed a judgment of the Supreme Court, New York County (Ronald Zweibel, J.), which had convicted defendant, upon a jury verdict, of burglary in the second degree, robbery in the second degree (four counts), rape in the first degree (two counts) and sexual abuse in the first degree, and sentenced defendant, as a persistent felony offender.
APPEAL, in the second above-entitled action, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered June 14, 2004. The Appellate Division modified, on the law and as a matter of discretion in the interest of justice, a judgment of the Erie County Court (Sheila A. DiTullio, J.), which had convicted defendant, upon a jury verdict, of attempted murder in the first degree (two counts), criminal possession of a weapon in the third degree and reckless endangerment in the first degree (two counts), and sentenced defendant, as a persistent felony offender. The modification consisted of reversing the convictions for attempted murder in the first degree and reckless endangerment in the first degree and ordering a new trial on counts one, two, seven and eight of the indictment.
People v. Daniels, 308 AD2d 389, affirmed.
People v. Robinson, 8 AD3d 1028, affirmed.
Legal Aid Society, New York City ( Andrew C. Fine and Laura R. Johnson of counsel), for appellant in the first above-entitled action.
Robert M. Morgenthau, District Attorney, New York City ( Mark Dwyer of counsel), for respondent in the first above-entitled action.
Legal Aid Bureau of Buffalo, Inc., Buffalo ( Mary Good, David C. Schopp and Barbara J. Davies of counsel), for appellant in the second above-entitled action.
Frank J. Clark, District Attorney, Buffalo ( J. Michael Marion of counsel), for respondent in the second above-entitled action.
Mischel Neuman Horn, P.C., New York City ( James E. Neuman of counsel), and Richard D. Willstatter for New York State Association of Criminal Defense Lawyers and another, amici curiae in the first and second above-entitled actions.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division in each case should be affirmed. Defendants seek to have their persistent felony offender sentences (Penal Law § 70.10; CPL 400.20) vacated. In contrast to People v. Rivera ( 5 NY3d 61), defendants did not preserve their claims under Apprendi v. New Jersey ( 530 US 466). The prosecution argues that this failure precludes our review of the issue, while defendants contend that an alleged Apprendi violation goes to the mode of proceedings and does not require preservation. Even if an Apprendi violation may be raised as an unpreserved mode of proceedings error ( see People v. Rosen, 96 NY2d 329, 335), defendants would not prevail on the merits ( see Rivera).
In each case: Order affirmed in a memorandum.