PEOPLE v. CUNNINGHAM (2006)

Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered February 24, 2004, convicting defendant, after a jury trial, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

To the extent that in its Sandoval ruling the court improperly permitted the People to elicit prejudicial underlying facts of prior similar convictions, the court erred.   We find, however, the error to be harmless in light of the overwhelming evidence of defendant's guilt (see e.g. People v. Shields, 46 N.Y.2d 764, 413 N.Y.S.2d 649, 386 N.E.2d 257 [1978];  People v. Grant, 23 A.D.3d 172, 802 N.Y.S.2d 686 [2005], lv. granted 6 N.Y.3d 813, 812 N.Y.S.2d 452, 845 N.E.2d 1283 [2006];  compare People v. Williams, 56 N.Y.2d 236, 240-241, 451 N.Y.S.2d 690, 436 N.E.2d 1292 [1982] ).   Defendant never challenged his identity as the person who attempted to enter the apartment of the complaining witness, who chased after defendant, resulting in his apprehension.

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 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 [2001], cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001] ).   Defendant's mandatory sentence as a persistent violent felony offender was based entirely on his prior convictions (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).