People v Calaff, 2006 NY Slip Op 04515 [30 AD3d 193]

June 8, 2006

Appellate Division, First Department

— [*1] Judgment, Supreme Court, New York County (Michael A. Corriero, J.), rendered September 30, 2004, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

Defendant’s conviction was based on legally sufficient evidence and was not against the weight of the evidence ( see People v Bleakley , 69 NY2d 490 [1987]). There is no basis for disturbing the jury’s determinations regarding identification and credibility.

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit ( see People v Rosen , 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant’s enhanced sentence was based entirely on his prior convictions ( see Almendarez – Torres v United States , 523 US 224 [1998]).

Defendant’s argument concerning the prosecutor’s opening statement is without merit. The remaining contentions contained in defendant’s pro se supplemental brief are unpreserved [*2] and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur—Marlow, J.P., Williams, Gonzalez, Sweeny and Catterson, JJ.