People v. Daniels

833 N.E.2d 704, 5 N.Y.3d 738, 800 N.Y.S.2d 369

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be af firmed. Defendants seek to have their persistent felony offender sentences (Penal Law § 70.10; CPL 400.20) vacated. In contrast to People v Rivera (5 NY3d 61 [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).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

In each case: Order affirmed in a memorandum.