Pursuant to a plea agreement entered into on March 10, 1992, the within Defendant, Anthony Garcia, was convicted of Criminal Possession of a Loaded Firearm in the Third Degree (Penal Law § 265.02[4]), a Class D violent felony (Sheindlin, J.). He was thereupon sentenced as a mandatory persistent violent felony offender pursuant to Penal Law § 70.08, to an indeterminate prison term of from six years to life (Sheindlin, J.).^[FN1] Defendant is presently incarcerated.^[FN2] [*2]

In pro se motion papers dated June 26, 2007, Defendant now seeks to have this Court set aside his sentence pursuant to CPL § 440.20, claiming that: (1) he was sentenced as a discretionary persistent felony offender pursuant to Penal Law § 70.10, and under Apprendi v. New Jersey, 530 U.S. 466 (2000) this sentencing statute is unconstituional, and (2) that his life sentence is invalid, as it exceeds the statutory maximum authorized under Penal Law § 265.02(4)^[FN3].

For the reasons set forth below, the motion is denied in its entirety.

Initially, Defendant's motion is procedurally barred. He moves the Court to set aside his sentence pursuant to CPL § 440.20, which provides that a sentence may be set aside if it was, inter alia "unauthorized, illegally imposed, or otherwise invalid as a matter of law." Defendant claims that he was sentenced as a discretionary persistent felony offender; and that under Apprendi (id.) and its progeny, the Court's imposed sentence was unconstitutional. Both of these arguments are without merit.

Defendant has not provided any evidence to support self-serving allegations. Pursuant to CPL � 440.30(4)(b), a court may deny a motion to set aside a sentence where "the motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts." Further, pursuant to CPL � 440.30(4)(d), a court may deny a motion without a hearing if an essential allegation of fact "is made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true." See also People v. Session, 34 NY2d 254, 255-256 (1974) ("[a] judgment of conviction is presumed valid, and the party challenging its validity...has the burden of coming forward with allegations sufficient to create an issue of fact....bare allegations are insufficient to carry this evidentiary burden.").In the instant matter, Defendant avers that he was sentenced as a discretionary persistent felony offender under Penal Law � 70.10, however, he offers no factual basis for same. He fails to provide, for example, the relevant portions of the sentencing minutes which could support his assertion. See People v. Roman, 222 AD2d 269, 270 (1st Dept. 1995) ([i]nitially, we note the present record is inadequate to support defendant's factual claims as to a promise of concurrent time as he failed to provide the motion court with the...plea and sentencing minutes....") see also People v. Beverly, 5 AD3d 862 (3rd Dept. 2004) (where defendant's allegations unsupported by evidentiary facts was denied). Therefore, in light of Defendant's failure to provide the relevant sentencing minutes laying forth that the court sentenced him as a discretionary persistent felony offender warrants a [*3]denial of his motion.

Defendant's motion is also denied as being without merit because, pursuant to CPL � 440.30(4)(a), a court may deny a motion without hearing where "moving papers do not allege any ground constituting legal basis for the motion." Additionally, the court may deny a motion without hearing where "[a]n allegation of fact essential to support the motion is conclusively refuted by unquestionable documentary proof." See CPL �440.30(4)(c). Defendant, who was sentenced as a mandatory persistent violent felony offender, was convicted of Criminal Possession of a Loaded Firearm in the Third Degree, Penal Law � 265.02[4], which is a class D violent felony offense. P.L. §70.08(1) establishes that "a persistent violent felony offender is a person who stands convicted of a violent felony offense. . .after having previously been subjected to two or more predicate violent felony convictions. Defendant's claim that he was sentenced as a discretionary persistent felony offender under Penal Law �70.10 is clearly refuted by his Sentence and Commitment Sheet provided by the People. Said document sets forth that the Court sentenced Defendant as a mandatory persistent violent felony offender and imposed a sentence which comports with the statutory guidelines set forth for a mandatory persistent violent felony offender convicted of a Class D violent felony offense, rather than those applicable to a discretionary persistent felony offender. See Penal Law � � 70.00, 70.08, and 70.10. As Defendant acknowledges, the Court imposed an indeterminate prison term of from six years to life (see Defendant's Affidavit ¶ 5), a sentence which is impermissible for a discretionary persistent felony offender.

Pursuant to Penal Law � � 70.00(2)(a), (3)(a)(i) and 70.10(1),(2), once a court determines that a defendant is a discretionary persistent felony offender, it must then sentence him to an indeterminate prison term of from fifteen years to life, not to exceed an indeterminate prison term of from twenty-five years to life. Clearly, Defendant's indeterminate sentence of from six years to life is not within this range. Instead, it falls squarely with the permissible range for a mandatory persistent violent felony offender convicted of a Class D violent felony offense, of which Defendant was convicted in the instant case. See Penal Law � � 70.02(1)(c) and 70.08(1)(a), (2), (3). The record before the Court clearly indicates that Defendant was in fact sentenced as a mandatory persistent violent felony offender, a sentence within the permissible statutory range.

Defendant's challenge to the constitutionality of his sentence under Apprendi is likewise flawed. In Apprendi v. New Jersey, supra, the highest Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (at 476).

In the case at bar, the Court imposed an enhanced sentence after it first found beyond a reasonable doubt the "fact" that the Defendant had certain prior felony convictions qualifying him to be sentenced as a mandatory persistent violent felony offender. This finding did not require the case to go before a jury; the existence of Defendant's felony criminal record is a matter of public record and not constitutionally required to be proven to a jury. See Apprendi supra at 488-490.

ORDERED, that Defendant's motion to set aside his sentence is in its entirety denied.

This constitutes the opinion and decision of the Court.

Dated: Bronx, New York

September 28, 2007 [*4]

_______________________

Dominic R. Massaro

Justice of the Supreme Court