People v Daniels, 5 NY3d 738 (2005)

2005 NY Slip Op 04991 [5 NY3d 738]
June 14, 2005
Court of Appeals

[*1]

The People of the State of New York, Respondent,
v
Charles Daniels, Appellant.
The People of the State of New York, Respondent, v Byron Robinson, Appellant.

Argued April 26, 2005; decided June 14, 2005

People v Daniels, 308 AD2d 389, affirmed.

People v Robinson, 8 AD3d 1028, affirmed.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be affirmed. Defendants seek to have their persistent felony offender sentences (Penal Law § 70.10; CP[*2]L 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.