People v Figueroa

2004 NYSlipOp 09240

December 14, 2004

Appellate Division, First Department

As corrected through Wednesday, February 23, 2005

The People of the State of New York, Respondent, v Lein Figueroa, Appellant.

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Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered December 10, 2002, convicting defendant, upon his plea of guilty, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to two concurrent terms of 20 years to life, unanimously affirmed.

Defendant's waiver of his right to appeal encompasses his present constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender (People v Callahan, 80 NY2d 273, 281 [1992]). Were we to find that this issue was not waived, we would find it to be unpreserved and, in any event, without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant's mandatory sentence as a persistent violent felony offender was triggered solely by his prior convictions (see Almendarez-Torres v United States, 523 US 224 [1998]). Concur—Nardelli, J.P., Tom, Saxe, Friedman and Sweeny, JJ.