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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Atahualpa RODRIGUEZ, Defendant-Appellant.

Decided: September 28, 2006

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, NARDELLI, McGUIRE, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Laura Burde of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Ameer Benno of counsel), for respondent.

Judgment of resentence, Supreme Court, New York County (James A. Yates, J.), rendered November 3, 2005, resentencing defendant, upon his conviction, after a nonjury trial, of criminal possession of a controlled substance in the first degree, as a second felony offender, to a term of 12 years, unanimously affirmed.

 Defendant was resentenced, pursuant to the Drug Law Reform Act (L. 2004, ch. 738), from a term of 15 years to life to a term of 12 years on his first-degree drug possession conviction.   His argument that his conviction should be reduced to second-degree possession is without merit (People v. Quinones, 22 A.D.3d 218, 801 N.Y.S.2d 595 [2005], lv. denied 6 N.Y.3d 817, 812 N.Y.S.2d 456, 845 N.E.2d 1287 [2006];  People v. Nelson, 21 A.D.3d 861, 804 N.Y.S.2d 1 [2005], lv. granted 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165 [2005] ).   Defendant's constitutional challenge to the procedure under which he was sentenced as a second felony offender is also without merit (Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).