PEOPLE v. MOYE (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Toni M. Cimino, J.), rendered April 17, 2023, convicting him of attempted arson in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that he was unconstitutionally sentenced as a second violent felony offender because a judge, rather than a jury, determined that his previous conviction was a violent felony offense (see generally Erlinger v. United States, 602 U.S. 821, 144 S.Ct. 1840, 219 L.Ed.2d 451;  Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435).  This contention is unpreserved for appellate review (see People v. Hernandez, 43 N.Y.3d 591, 597–598, 239 N.Y.S.3d 59, 265 N.E.3d 1076;  People v. Munoz, 237 A.D.3d 1110, 1111, 230 N.Y.S.3d 414).  In any event, the contention is without merit.  Under the New York sentencing scheme, the question of whether a prior felony offense is a violent felony offense is not a factual one based on the circumstances of the crime, but rather a purely legal one based on whether the offense is one of the crimes listed in Penal Law § 70.02(1) (see id. § 70.04[1][a]).  Thus, it is not a fact that must be found by a jury (see Erlinger v. United States, 602 U.S. at 834, 838–839, 144 S.Ct. 1840;  Almendarez–Torres v. United States, 523 U.S. 224, 226–227, 118 S.Ct. 1219, 140 L.Ed.2d 350;  People v. Bell, 15 N.Y.3d 935, 915 N.Y.S.2d 208, 940 N.E.2d 913).

LASALLE, P.J., CONNOLLY, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.