| People v Ortiz |
| 2012 NY Slip Op 03858 [95 AD3d 1140] |
| May 15, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Antonio Ortiz, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Laura T. Ross of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered March 6, 2009, convicting him of predatory sexual assault (two counts), criminal sexualact in the first degree, rape in the first degree, attempted rape in the first degree, and burglary inthe first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions of criminalsexual act in the first degree and rape in the first degree, vacating the sentences imposed thereon,and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
Contrary to the People's contention, the defendant's challenge to the Supreme Court'sSandoval ruling (see People v Sandoval, 34 NY2d 371 [1974]) is preserved forappellate review (cf. People v Villanueva, 289 AD2d 425, 425 [2001]; People vBrito, 179 AD2d 666, 666 [1992]). However, the claim is without merit. In fashioning itsSandoval ruling, the Supreme Court "struck an appropriate balance between the probativevalue of the defendant's prior crimes and the possible prejudice to the defendant" (People v Townsend, 70 AD3d982, 982 [2010]; see People v Sandoval, 34 NY2d 371 [1974]). A defendant is notinsulated from impeachment by the use of past convictions merely because those crimes aresimilar to the crime charged (see People v Pavao, 59 NY2d 282, 292 [1983]; People v Aguayo, 85 AD3d 809,810 [2011]; People v Springer, 13AD3d 657, 658 [2004]).
The defendant's contention that the persistent violent felony offender sentencing schemeunder Penal Law § 70.08 violates the principles articulated by the United States SupremeCourt in Apprendi v New Jersey (530 US 466 [2000]) is unpreserved for appellate review(see CPL 470.05 [2]; People vMendez, 71 AD3d 696, 696 [2010]; People v Rodriguez, 51 AD3d 950, 951 [2008]) and, in any event,is without merit (see People v Bell,15 NY3d 935, 936 [2010], cert denied 563 US —, 131 S Ct 2885 [2011]; People v Leon, 10 NY3d 122, 126[2008], cert denied 554 US 926 [2008]; People v Cardova, 88 AD3d 1008, 1009 [2011]; People v Wellington, 84 AD3d984, 985 [2011]; People vShaw, 83 AD3d 1101, 1103 [2011]; People v Amico, 78 AD3d 1190, 1191 [2010]).
As the defendant argues and the People correctly concede, criminal sexual act in the firstdegree and rape in the first degree are lesser-included offenses of predatory sexual assault(see Penal Law § 130.35 [1]; § 130.50 [1]; § 130.95 [1] [b]). Thus, wemust vacate the convictions and sentences for criminal sexual act in the first degree and rape inthe first degree and dismiss those counts of the indictment (see CPL 300.40 [3] [b];People v Lee, 39 NY2d 388, 390 [1976]).
The defendant's remaining contentions, raised in his pro se supplemental brief, areunpreserved for appellate review and, in any event, are without merit. Skelos, J.P., Dickerson,Eng and Austin, JJ., concur.