| People v Jackson |
| 2007 NY Slip Op 09972 [46 AD3d 1110] |
| December 20, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Chester L.Jackson, Appellant. |
—[*1] Donald F. Cerio Jr., District Attorney, Wampsville, for respondent.
Lahtinen, J. Appeal from a judgment of the County Court of Madison County (DiStefano, J.),rendered September 10, 2001, convicting defendant upon his plea of guilty of the crimes ofburglary in the second degree, rape in the first degree and robbery in the second degree.
In satisfaction of two indictments and one superior court information, defendant pleadedguilty to burglary in the second degree, rape in the first degree and robbery in the second degree.As part of such pleas, defendant agreed to be sentenced as a persistent felony offender to a prisonterm of 15 years to life on the burglary charge and as a second felony offender to two 10-yearsentences on the rape and robbery charges, with all sentences to run concurrently. Additionally,defendant agreed to waive, among other things, his right to a hearing to determine whether heshould be sentenced as a persistent felony offender on the burglary charge. After being sentencedin accordance with the plea agreement, defendant appealed to this Court.
On this appeal, defendant argues that the imposition of an enhanced sentence on the burglarycharge pursuant to the persistent felony offender sentencing provisions of Penal Law §70.10 and CPL 400.20 violated US Constitution 6th Amendment since the facts upon which theenhanced sentence was based were not proven beyond a reasonable doubt before a jury (seeApprendi v New Jersey, 530 US 466 [2000]; see also Cunningham v California, 549US —, 127 S Ct 856 [2007]; United States v Booker, 543 US 220 [2005];Blakely v Washington, 542 US [*2]296 [2004]). Thisargument, however, was not preserved for our review (see People v Singh, 35 AD3d 633, 634 [2006], lv denied 9NY3d 881 [2007]; People v Knox,32 AD3d 617, 618 [2006], lv dismissed 7 NY3d 899 [2006], lv denied 7NY3d 903 [2006]; People v Moore,6 AD3d 1076, 1077 [2004], lv denied 3 NY3d 661 [2004]), and we decline toexercise our interest of justice jurisdiction.
In any event, this Court is bound by the decision of the Court of Appeals in People v Rivera (5 NY3d 61[2005], cert denied 546 US 984 [2005]) notwithstanding conflicting federalpost-Rivera decisions (see Washington v Poole, 507 F Supp 2d 342 [2007];Portalatin v Graham, 478 F Supp 2d 385 [2007]; but see Bailey v Rivera, 2007WL 3120904, 2007 US Dist LEXIS 78753 [SD NY 2007]; Morris v Artus, 2007 WL2200699, 2007 US Dist LEXIS 55650 [SD NY 2007]; Phillips v Artus, 2006 WL1867386, 2006 US Dist LEXIS 45697 [SD NY 2006]) since, "[i]f there is a conflict between thelower [f]ederal courts and the New York Court of Appeals, we are bound by the rulings of ourhighest court" (Matter of Boyd v Constantine, 180 AD2d 186, 189 [1992], revd onother grounds 81 NY2d 189 [1993]; see People v Johnson, 24 AD3d 967, 970 [2005], lv denied6 NY3d 814 [2006]). Finally, we note that County Court did not make any factual findings uponwhich it based its sentencing of defendant (see People v Rivera, 5 NY3d at 67-68).
Cardona, P.J., Mercure, Crew III and Carpinello, JJ., concur. Ordered that the judgment isaffirmed.