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

The PEOPLE of the State of New York, Respondent, v. Rodney LLOYD, Defendant-Appellant.

Decided: November 22, 2005

SAXE, J.P., MARLOW, ELLERIN, GONZALEZ, McGUIRE, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Yael V. Levy of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Steven Lloyd Barrett, J. on dismissal motion;  Margaret Clancy, J. at jury trial and sentence), rendered April 8, 2004, convicting defendant of sodomy in the first degree, sexual abuse in the first degree and endangering the welfare of a child, and sentencing him, as a persistent violent felony offender, to two consecutive terms of 25 years to life concurrent with a term of 1 year, unanimously modified, on the law, to the extent of vacating the provisions for DNA databank fees and sex offender registration fees and reducing the amounts of the mandatory surcharge and crime victim assistance fees from $200 and $10 to $150 and $5, respectively, and otherwise affirmed.

 The motion court properly denied defendant's motion to dismiss the indictment as time-barred.   The applicable five-year statute of limitations was tolled pursuant to Criminal Procedure Law 30.10(4)(a)(ii) because defendant's identity and whereabouts were unknown following the attack and were unascertainable by the exercise of reasonable diligence (see People v. Seda, 93 N.Y.2d 307, 690 N.Y.S.2d 517, 712 N.E.2d 682 [1999] ).   The People met their initial burden of showing reasonable diligence, and defendant did not meet his burden of proving the contrary (see People v. Jones, 299 A.D.2d 283, 751 N.Y.S.2d 173 [2002], lv. denied 99 N.Y.2d 655, 760 N.Y.S.2d 120, 790 N.E.2d 294 [2003] ).   After this 1996 crime, law enforcement authorities exhausted all reasonable investigative steps and when, years later, they acquired the ability to solve the crime by matching DNA, this case was one of about 16,000 similar “cold cases” awaiting DNA comparison.   Under these circumstances, the record warrants the conclusion that the People acted with reasonable diligence in obtaining a DNA match.

Defendant failed to preserve for appellate review his present constitutional challenge to the statutory procedure under which the court sentenced him as a persistent violent felony offender.   In any event, it is without merit (see People v. Rosen, 96 N.Y.2d 329, 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] ).   Defendant's mandatory sentence was based on his prior convictions (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).

 The court properly imposed consecutive sentences for the sodomy and sexual abuse convictions because the offenses were separate and distinct acts, notwithstanding that they occurred in the course of a continuous incident (see Penal Law § 70.25(2);  People v. Laureano, 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 [1996];  People v. Jones, 256 A.D.2d 30, 31, 680 N.Y.S.2d 847 [1998], lv. denied 93 N.Y.2d 900, 689 N.Y.S.2d 712, 711 N.E.2d 988 [1999] ).   Defendant's claim that the procedure by which the court determined that he was eligible for consecutive sentences violated the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) is unpreserved and without merit (see United States v. White, 240 F.3d 127 [2d Cir.2001], cert. denied 540 U.S. 857, 124 S.Ct. 157, 157 L.Ed.2d 104 [2003] ).   The sentencing court did not engage in any fact-finding, but instead made a legal determination based on facts already found by the jury (cf. People v. Parks, 95 N.Y.2d 811, 712 N.Y.S.2d 429, 734 N.E.2d 741 [2000] ).

As the People concede, since the crime was committed prior to the effective dates of amendments to Penal Law § 60.35 providing for the imposition of sex offender registration and DNA databank fees, and increasing the mandatory surcharge and crime victim assistance fees, defendant's sentence is unlawful to the extent indicated.