| People v Prindle |
| 2015 NY Slip Op 05000 [129 AD3d 1506] |
| June 12, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael E. Prindle, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a resentence of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered August 3, 2011. Defendant was resentenced upon his convictionof manslaughter in the second degree.
It is hereby ordered that the resentence so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a resentence imposed by Supreme Courtupon remittal from the Court of Appeals, which modified the judgment by reducing hisconviction of murder in the second degree (Penal Law § 125.25 [2]) tomanslaughter in the second degree (§ 125.15 [1]) (People v Prindle, 16 NY3d768, 769 [2011]). Upon remittal, the court adjudicated defendant a persistent felonyoffender and resentenced him to an indeterminate term of imprisonment of 15 years tolife.
Defendant initially contends that New York's persistent felony offender statute isunconstitutional in light of the rule in Apprendi v New Jersey (530 US 466[2000]). We reject that contention. It is well settled that the persistent felony offenderstatute is constitutional (seePeople v Battles, 16 NY3d 54, 59 [2010], cert denied 565 US �,132 S Ct 123 [2011]; People vQuinones, 12 NY3d 116, 122-131 [2009], cert denied 558 US 821[2009]). Contrary to defendant's further contention, his resentencing does not violate therule in Alleyne v United States (570 US �, 133 S Ct 2151 [2013]),inasmuch as the factors that made him eligible for enhanced sentencing were priorconvictions that were based on proof beyond a reasonable doubt, and thus those factorswere not "based on [the court's] finding by a preponderance of the evidence"(Alleyne, 570 US at �, 133 S Ct at 2163).
Contrary to defendant's further contention, "[i]t is settled law that the sentencing of adefendant as a persistent felony offender . . . does not implicate theprotections embodied in the Double Jeopardy Clauses of the Federal and StateConstitutions" (People v Pelkey, 294 AD2d 669, 670 [2002], lv denied 98NY2d 771 [2002]; see People v Sailor, 65 NY2d 224, 226-227 [1985], certdenied 474 US 982 [1985]; see also Monge v California, 524 US 721,728-729 [1998]).
Finally, we reject defendant's contentions that he was improperly adjudicated apersistent felon, and that the sentence is unduly harsh and severe. We conclude thatdefendant's "history and character . . . and the nature and circumstances ofhis criminal conduct indicate that extended incarceration and life-time supervision willbest serve the public interest" (Penal Law § 70.10 [2]; see People v Bastian, 83 AD3d1468, 1470 [2011], lv denied 17 NY3d 813 [2011]; People v Perry, 19 AD3d619, 619 [2005], lv denied 5 NY3d 809 [2005], reconsiderationdenied 5 NY3d 855 [2005]). Present—Smith, J.P., Centra, Peradotto, Sconiersand Whalen, JJ. [Prior Case History: 32 Misc 3d 1227(A), 2011 NY Slip Op51437(U).]