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

The PEOPLE, etc., respondent, v. Antonio ORTIZ, appellant.

Decided: May 15, 2012

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and LEONARD B. AUSTIN, JJ. Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Laura T. Ross of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered March 6, 2009, convicting him of predatory sexual assault (two counts), criminal sexual act in the first degree, rape in the first degree, attempted rape in the first degree, and burglary in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the convictions of criminal sexual act in the first degree and rape in the first degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment;  as so modified, the judgment is affirmed.

 Contrary to the People's contention, the defendant's challenge to the Supreme Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) is preserved for appellate review (cf. People v. Villanueva, 289 A.D.2d 425, 425, 734 N.Y.S.2d 906;  People v. Brito, 179 A.D.2d 666, 666, 578 N.Y.S.2d 607,).  However, the claim is without merit.   In fashioning its Sandoval ruling, the Supreme Court “struck an appropriate balance between the probative value of the defendant's prior crimes and the possible prejudice to the defendant” (People v. Townsend, 70 A.D.3d 982, 982, 897 N.Y.S.2d 448;  see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413).   A defendant is not insulated from impeachment by the use of past convictions merely because those crimes are similar to the crime charged (see People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216;  People v. Aguayo, 85 A.D.3d 809, 810, 924 N.Y.S.2d 817;  People v. Springer, 13 A.D.3d 657, 658, 787 N.Y.S.2d 386).

The defendant's contention that the persistent violent felony offender sentencing scheme under Penal Law § 70.08 violates the principles articulated by the United States Supreme Court in Apprendi v. New Jersey (530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435) is unpreserved for appellate review (see CPL 470.05[2];  People v. Mendez, 71 A.D.3d 696, 696, 894 N.Y.S.2d 902;  People v. Rodriguez, 51 AD3d 950, 951, 860 N.Y.S.2d 540) and, in any event, is without merit (see People v. Bell, 15 N.Y.3d 935, 936, 915 N.Y.S.2d 208, 940 N.E.2d 913, cert. denied 563 U.S. ––––, 131 S.Ct. 2885, 179 L.Ed.2d 1197;  People v. Leon, 10 N.Y.3d 122, 126, 855 N.Y.S.2d 38, 884 N.E.2d 1037, cert. denied 554 U.S. 926, 128 S.Ct. 2976, 171 L.Ed.2d 900;  People v. Cardova, 88 A.D.3d 1008, 1009, 931 N.Y.S.2d 375;  People v. Wellington, 84 A.D.3d 984, 985, 923 N.Y.S.2d 581;  People v. Shaw, 83 A.D.3d 1101, 1103, 922 N.Y.S.2d 171;  People v. Amico, 78 A.D.3d 1190, 1191, 913 N.Y.S.2d 675).

 As the defendant argues and the People correctly concede, criminal sexual act in the first degree and rape in the first degree are lesser-included offenses of predatory sexual assault (see Penal Law §§ 130.35[1], 130.50 [1], 130.95[1][b] ).  Thus, we must vacate the convictions and sentences for criminal sexual act in the first degree and rape in the first degree and dismiss those counts of the indictment (see CPL 300.40[3][b];  People v. Lee, 39 N.Y.2d 388, 390, 384 N.Y.S.2d 123, 348 N.E.2d 579).

The defendant's remaining contentions, raised in his pro se supplemental brief, are unpreserved for appellate review and, in any event, are without merit.

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