People v Daniels

2005 NY Slip Op 04991

Decided on June 14, 2005

Court of Appeals

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2005
No. 84



Case No. 84:

Andrew C. Fine, for appellant.
Mark Dwyer, for respondent.
New York State Association of Criminal Defense Lawyers et al., amici curiae.
Case No. 87:
Mary Good, for appellant.
J. Michael Marion, for respondent.
New York State Association of Criminal Defense Lawyers et al., amici curiae.



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; Criminal Procedure [*2]Law § 400.20) vacated. In contrast to People v Rivera (__ NY3d __ [decided June 9, 2005]), defendants did not preserve their claims under Apprendi v New Jersey, 530 US 466 [2000]). 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 [2001]), defendants would not prevail on the merits (see Rivera).
* * * * * * * * * * * * * * * * *
In each case: Order affirmed, in a memorandum. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and
R.S. Smith concur.
Decided June 14, 2005