People v Edgardo Rodriguez-Ortiz

People v Rodriguez-Ortiz 2005 NY Slip Op 08204 [23 AD3d 204] November 3, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

The People of the State of New York, Respondent,
v
Edgardo Rodriguez-Ortiz, Appellant.

—[*1]Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered February 18, 2004, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

Defendant's waiver of his right to appeal encompasses his present constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender (see People v Callahan, 80 NY2d 273, 281 [1992]; People v Figueroa, 13 AD3d 163 [2004], lv denied 4 NY3d 798 [2005]). Were we to find that this issue was not waived, we would find it to be unpreserved and, in any event, without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant's mandatory sentence was based entirely on his prior convictions (see Almendarez-Torres v United States, 523 US 224 [1998]). Concur—Marlow, J.P., Nardelli, Williams, Sweeny and McGuire, JJ.