PEOPLE v. CONGER (2005)

Appeals (1) from a judgment of the County Court of Chemung County (Hayden, J.), rendered December 13, 2002, upon a verdict convicting defendant of the crimes of burglary in the second degree (three counts) and petit larceny (three counts), and (2) by permission, from an order of said court, entered July 10, 2003, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence, without a hearing.

Defendant was convicted of three counts of burglary in the second degree and three counts of petit larceny.   Two prior felony convictions were then proven at a hearing, County Court adjudicated defendant a persistent felony offender and he was sentenced as such to concurrent prison terms of 15 years to life.   He now appeals.

Citing the U.S. Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 [2004] and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 [2002], which apply the rule set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 [2000], defendant argues that the statute pursuant to which he was adjudicated a persistent felony offender is unconstitutional because it permits enhancement of a sentence based on facts not found by a jury (see CPL 400.20).   We disagree.   The rule applied in both Blakely and Ring is that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutorily prescribed maximum must be found by a jury and proven beyond a reasonable doubt, absent a waiver by the defendant (see Blakely v. Washington, supra at 2536;  Ring v. Arizona, supra at 604-605, 122 S.Ct. 2428).

This rule is not violated in New York because a defendant's prior felony convictions are the sole determinant “of whether a defendant is subject to enhanced sentencing as a persistent felony offender” (People v. Rosen, 96 N.Y.2d 329, 335, 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] ).   The statutorily prescribed minimum and maximum terms of imprisonment on each count of burglary in the second degree became 15 years and life in prison once defendant was found to be a persistent felony offender (see Penal Law §§ 70.00, 70.10[2] ).   Although County Court had discretion not to impose a sentence within that enhanced range (see Penal Law § 70.10[2] ), it was the prior convictions rather than the court's finding that “the history and character of the defendant and the circumstances of his criminal conduct” warranted extended incarceration that initially subjected defendant to enhanced sentencing.   Since neither Blakely nor Ring requires that the facts of any prior conviction be established by a jury before an enhanced sentencing scheme is invoked, defendant failed to show that his sentence was unconstitutional (see People v. Nelson, 16 A.D.3d 1172, 1173, 791 N.Y.S.2d 236 [2005] ).

Defendant's remaining arguments, including his challenge to County Court's refusal to suppress physical evidence and his claim that he did not receive the effective assistance of counsel, have been considered and found unpersuasive (see People v. Ladd, 16 A.D.3d 972, 973-974, 792 N.Y.S.2d 246 [2005] ).

ORDERED that the judgment and order are affirmed.

ROSE, J.

SPAIN, J.P., CARPINELLO, LAHTINEN and KANE, JJ., concur.