July 28, 2004. Appeal from the 2d Dept: 7 AD3d 638 (Kings). Application in criminal case for leave to appeal — Denied. (R.S. Smith, J.)
The defendant's claim that his adjudication as a persistent violent felony offender violated his right to a jury trial is unpreserved for appellate review ( see People v Highsmith, 21 AD3d 1037; People v Rice, 285 AD2d 617). In any event, as the defendant's sentence was enhanced solely based upon his recidivism ( see Penal Law § 70.08 [a]), he was not entitled to a jury trial to determine the facts of his prior felony convictions ( see People v Horn, 7 AD3d 638; People v Telesford, 2 AD3d 757, 758). The defendant's contention raised in his supplemental pro se brief that his due process rights were violated by the People's preindictment and postindictment delay is unpreserved for appellate review ( see People v Champelle, 144 AD2d 378).
The defendant's contentions that his sentencing as a persistent felony offender violated his constitutional rights to notice and a jury trial pursuant to Apprendi v. New Jersey ( 530 US 466), and that the Supreme Court did not comply with the procedural requirements of Penal Law § 70.10 and CPL 400.20 in adjudicating him a persistent felony offender, are unpreserved for appellate review and, in any event, are without merit ( see CPL 470.05; People v. Rivera, 5 NY3d 61, 67, cert denied ___ US ___, 126 S Ct 564; People v. Rosen, 96 NY2d 329, 335, cert denied 534 US 899; People v. Horn, 7 AD3d 638).
Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt of the crime of robbery in the first degree was not against the weight of the evidence. The defendant's claim that the enhanced sentence violated his constitutional right to have a jury determine his status as a persistent violent felony offender is unpreserved for appellate review, as he failed to object to the constitutionality of his prior convictions ( see People v. Rosen, 96 NY2d 329, cert denied 534 US 899; People v. Callahan, 80 NY2d 273, 281; People v. Horn, 7 AD3d 638). In any event, as the defendant's sentence was enhanced solely based upon his recidivism ( see Penal Law § 70.08 [a]), he was not entitled to a jury trial to determine the facts of his prior felony convictions ( see People v. Regan, 11 AD3d 640, lv denied 4 NY3d 747; People v. Rice, 285 AD2d 617).
Ordered that the judgment is affirmed. The defendant's constitutional challenge to the mandatory sentence enhancement provisions of Penal Law § 70.08 on the ground that there is no provision for a jury trial to determine the facts of his prior violent felony convictions, is unpreserved for appellate review, as he failed to object to the predicate felony statement or to the constitutionality of those convictions ( see People v. Callahan, 80 NY2d 273, 281; People v. Rice, 285 AD2d 617; People v. Horn, 7 AD3d 638; People v. Weiss, 122 AD2d 180). In any event, as the defendant's sentence was enhanced solely based upon his recidivism ( see Penal Law § 70.08 [a]), he was not entitled to a jury trial to determine the facts of his prior violent felony convictions ( see People v. Renna, 13 AD3d 398; People v. Regan, 11 AD3d 640, lv denied 4 NY3d 747; People v. Rice, supra; People v. Horn, supra; see also Long v. Donnelly, 335 F Supp 2d 450, 465-466; McKenzie v. Poole, 2004 WL 2671630, 2004 US Dist Lexis 23598 [ED NY, Nov. 23, 2004]; Green v. Herbert, 2002 WL 1587133, 2002 US Dist Lexis 13108 [SD NY, July 18, 2002]).
When there is no cooperation agreement, the People have no duty to produce evidence justifying their refusal to consent to reduce the defendant's sentence to a term less severe than that agreed to as part of the plea agreement. The defendant's argument that Penal Law § 70.08 violates the rule announced in Apprendi v. New Jersey ( 530 US 466; see Blakely v. Washington, 542 US ___, 124 S Ct 2531; Ring v. Arizona, 536 US 584) is not preserved for appellate review ( see e.g. People v. Rosen, 96 NY2d 329, 335, cert denied 534 US 899; People v. Besser, 96 NY2d 136, 148; People v. Sutton, 12 AD3d 707; People v. Robinson, 8 AD3d 1028, 1030; People v. Norris, 5 AD3d 796, 797), and, in any event, is without merit ( see e.g. People v. Sutton, supra; People v. Horn, 7 AD3d 638, lvdenied 3 NY3d 659; People v. Horne, 6 AD3d 549, 550; People v. Norris, supra).
In any event, the comments were responsive to the defense counsel's summation ( see People v. McHarris, 297 AD2d 824, 825; People v. Miller, 143 AD2d 1055). The defendant's contention that his adjudication as a persistent violent felony offender violated his right to a jury trial is unpreserved for appellate review, and in any event, is without merit ( see People v. Rosen, 96 NY2d 329, cert denied 534 US 899; People v. Oliver, 63 NY2d 973; People v. Horn, 7 AD3d 638, lv denied 3 NY3d 659).
The defendant's constitutional challenge to the mandatory sentence enhancement provisions of Penal Law § 70.08, raised for the first time on appeal, is not preserved for appellate review as matter of law ( see People v. Rosen, 96 NY2d 329, cert denied 534 US 899; People v. Besser, 96 NY2d 136; People v. Norris, 5 AD3d 796, 797; People v. Josey, 5 AD3d 398, 399). In any event, we find that the mandatory sentence enhancement provisions of Penal Law § 70.08 do not violate either the Federal or the State Constitution ( see Apprendi v. New Jersey, 530 US 466, 490; Almendarez-Torres v. United States, 523 US 224; People v. Rosen, supra; People v. Horn, 7 AD3d 638, lv denied 3 NY3d 659; People v. Horne, 6 AD3d 549, lv denied 3 NY3d 641).
In any event, the defendant was not denied a fair trial ( see CPL 60.25 [a] [iii]; People v. Lagana, 36 NY2d 71, cert denied 424 US 942; People v. Nival, 33 NY2d 391; People v. Diggs, 5 AD3d 395, lv denied 2 NY3d 798; People v. Ortiz, 253 AD2d 710). The defendant's claim that the enhanced sentence violated his constitutional right to have a jury determine his status as a persistent violent felony offender is unpreserved for appellate review, as he failed to object to the persistent violent felony statement or the constitutionality of his prior convictions ( see People v. Rosen, 96 NY2d 329, cert denied 534 US 899; People v. Callahan, 80 NY2d 273, 281; People v. Horn, 7 AD3d 638). In any event, as the defendant's sentence was enhanced solely based upon his recidivism ( see Penal Law § 70.08 [a]), he was not entitled to a jury trial to determine the facts of his prior felony convictions ( see People v. Rice, 285 AD2d 617; see also Green v. Herbert, 2002 WL 1587133, 2002 US Dist LEXIS 13108 [SD NY, July 18, 2002]).