PEOPLE v. BINGHAM (2005)

Appeal, by permission, from an order of the County Court of Sullivan County (LaBuda, J.), entered October 16, 2003, which denied defendant's motion pursuant to CPL 440.20 to set aside the sentence following his conviction of the crime of criminal possession of stolen property in the fourth degree, without a hearing.

In 1997, defendant was convicted of, among other things, criminal possession of stolen property in the fourth degree (263 A.D.2d 611, 692 N.Y.S.2d 823 [1999], lv. denied 93 N.Y.2d 1014, 697 N.Y.S.2d 573, 719 N.E.2d 934 [1999] ), and the People thereafter moved to have him sentenced as a persistent felony offender (see Penal Law § 70.10).   County Court found that the People had proven beyond a reasonable doubt that defendant had previously been convicted of at least two felonies and, thus, determined that defendant was a persistent felony offender (see CPL 400.20).   After considering evidence regarding defendant's history and character, as well as the nature and circumstances of his criminal conduct, County Court sentenced him to a term of incarceration of 15 years to life (see Penal Law § 70.00[2][a];  [3][a] [i];  § 70.10[2] ).   Defendant subsequently moved pursuant to CPL 440.20 to set aside that sentence, asserting that it violated his rights under the U.S. Constitution.   County Court denied the motion, and defendant was granted permission to appeal.

Defendant argues that New York's persistent felony statutes violate the Sixth Amendment as interpreted in a series of U.S. Supreme Court cases (see generally United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 [2005];  Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 [2004];  Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 [2002];  Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 [2000] ).   However, the Court of Appeals recently addressed this same argument in People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194 [2005], cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473, and held that the applicable statutory sentencing scheme is constitutional (id. at 69-70, 800 N.Y.S.2d 51, 833 N.E.2d 194).   In this case, the persistent felony offender statutes were applied by County Court in the manner found not to run afoul of the Sixth Amendment in Rivera.   Defendant's constitutional challenge to his sentence must thus fail.

ORDERED that the order is affirmed.

CARDONA, P.J.

MUGGLIN, ROSE, LAHTINEN and KANE, JJ., concur.