Opinion
12.
Decided June 14, 2005.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered November 4, 2004. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, New York County (John A.K. Bradley, J.; op 2 Misc 3d 332), which had granted defendant's motion pursuant to CPL 440.20, and vacated his sentence as a persistent felony offender, finding the persistent felony offender statutory scheme unconstitutional, and (2) reinstated defendant's sentence of two concurrent terms of from 15 years to life imprisonment.
People v. West, 12 AD3d 152, affirmed.
Center for Appellate Litigation, New York City ( Jan Hoth of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York City ( Morrie I. Kleinbart of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed. We need not decide whether defendant could raise his Apprendi v. New Jersey ( 530 US 466) argument for the first time on a motion to set aside his sentence pursuant to CPL 440.20 in view of the Court's holding that New York's persistent felony offender statute is constitutional ( see People v. Rivera, 5 NY3d 61).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order affirmed in a memorandum.