PEOPLE v. JACKSON (2007)

Appeal from a judgment of the County Court of Madison County (DiStefano, J.), rendered September 10, 2001, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree, rape in the first degree and robbery in the second degree.

In satisfaction of two indictments and one superior court information, defendant pleaded guilty to burglary in the second degree, rape in the first degree and robbery in the second degree.   As part of such pleas, defendant agreed to be sentenced as a persistent felony offender to a prison term of 15 years to life on the burglary charge and as a second felony offender to two 10-year sentences on the rape and robbery charges, with all sentences to run concurrently.   Additionally, defendant agreed to waive, among other things, his right to a hearing to determine whether he should be sentenced as a persistent felony offender on the burglary charge.   After being sentenced in accordance with the plea agreement, defendant appealed to this Court.

 On this appeal, defendant argues that the imposition of an enhanced sentence on the burglary charge pursuant to the persistent felony offender sentencing provisions of Penal Law §§ 70.10 and CPL 400.20 violated U.S. Constitution 6th Amendment since the facts upon which the enhanced sentence was based were not proven beyond a reasonable doubt before a jury (see Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 [2000];  see also Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 [2007];  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] ).   This argument, however, was not preserved for our review (see People v. Singh, 35 A.D.3d 633, 634, 825 N.Y.S.2d 764 [2006], lv. denied 9 N.Y.3d 881, 842 N.Y.S.2d 793, 874 N.E.2d 760 [2007];  People v. Knox, 32 A.D.3d 617, 618, 818 N.Y.S.2d 921 [2006], lv. dismissed 7 N.Y.3d 899, 826 N.Y.S.2d 608, 860 N.E.2d 70 [2006], lv. denied 7 N.Y.3d 903, 826 N.Y.S.2d 612, 860 N.E.2d 74 [2006];  People v. Moore, 6 A.D.3d 1076, 1077, 775 N.Y.S.2d 615 [2004], lv. denied 3 N.Y.3d 661, 782 N.Y.S.2d 703, 816 N.E.2d 576 [2004] ), and we decline to exercise our interest of justice jurisdiction.

 In any event, this Court is bound by the decision of the Court of Appeals 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 [2005] notwithstanding conflicting federal post-Rivera decisions (see Washington v. Poole, 507 F.Supp.2d 342 [2007];  Portalatin v. Graham, 478 F.Supp.2d 385 [2007];  but see Bailey v. Rivera, U.S. Dist. Ct., S.D.N.Y., 07 Civ. 2181, 2007 WL 3120904, Lynch, J., 2007;  Morris v. Artus, U.S. Dist. Ct., S.D.N.Y., 06 Civ. 4095, 2007 WL 2200699, Sweet, J., 2006;  Phillips v. Artus, U.S. Dist. Ct., S.D.N.Y., 05 Civ. 7974, 2006 WL 1867386, Crotty, J., 2006) since, “[i]f there is a conflict between the lower [f]ederal courts and the New York Court of Appeals, we are bound by the rulings of our highest court” (Matter of Boyd v. Constantine, 180 A.D.2d 186, 189, 586 N.Y.S.2d 439 [1992], revd. on other grounds 81 N.Y.2d 189, 597 N.Y.S.2d 605, 613 N.E.2d 511 [1993];  see People v. Johnson, 24 A.D.3d 967, 970, 805 N.Y.S.2d 696 [2005], lv. denied 6 N.Y.3d 814, 812 N.Y.S.2d 454, 845 N.E.2d 1285 [2006] ).   Finally, we note that County Court did not make any factual findings upon which it based its sentencing of defendant (see People v. Rivera, 5 N.Y.3d at 67-68, 800 N.Y.S.2d 51, 833 N.E.2d 194).

ORDERED that the judgment is affirmed.

LAHTINEN, J.

CARDONA, P.J., MERCURE, CREW III and CARPINELLO, JJ., concur.