By notice of motion dated January 6, 2008, defendant moves to set aside his sentences on each of the four above-referenced convictions pursuant to CPL §440.20, principally on the ground that they were unconstitutionally imposed. The People oppose the application. As stated in this opinion, defendant will be returned to this court for re-sentencing on his conviction of robbery in the third degree under Indictment No. 7858/93. In all other respects, defendant's motion is denied.

I.FACTUAL AND PROCEDURAL BACKGROUND

In 1993 and early 1994, defendant was charged in separate indictments with a series of armed bank robberies, the robbery of a patient in a hospital, and bail jumping. Specifically, defendant was charged with robbery in the third degree (PL §160.05) under Indictment No. 7858/93; two counts of attempted robbery in the second degree (PL §§ 110 and 160.10[2][b]) under Indictment No. 12429/93 and one count of robbery in the third degree (PL §160.05) and eight counts of robbery in the second degree (PL §160.10[2][b]) under Indictment No. 511/94. He was also charged under Indictment No. 1076/94 with bail jumping in the second degree (PL §215.56).

On November 16, 1994, pursuant to a plea agreement, defendant pled guilty before this court under the four above-referenced indictments to one count of robbery in the third degree under Indictment No. 7858/93; one count of attempted robbery in the second degree (PL §§ 110 and 160.10[2][b]) under Indictment No. 12429/93; three counts of robbery in the second degree (PL §160.10[2][b]) under Indictment No. 511/94 and one count of bail jumping the second degree (PL §215.56)under Indictment No. 1076/94. These pleas were in full satisfaction of all four indictments and to cover any as yet uncharged bank robberies with which defendant could be charged as of that date.That same day, the People filed a statement of predicate violent felony convictions (CPL §440.16) alleging that defendant had been previously convicted of attempted robbery in the first degree (PL §§110 and 160.15) on June 1, 1975, and three counts of [*2]robbery in the first degree (PL §160.15) on December 21, 1981. The court then held a persistent violent felony offender hearing (PL §400.16[2]), during which defendant was provided a copy of the statement and, after consultation with his counsel, admitted the allegations contained in it.

On December 14, 1994, this court sentenced defendant pursuant to Penal Law § 70.08 as a persistent violent felony offender to concurrent state prison terms of seven years-to-life on the robbery in the third degree count, seven years-to-life on the attempted robbery in the second degree count, seven years-to-life on each of the robbery in the second degree counts and two-to-four years on the bail jumping count.

On this motion, defendant does not challenge the instant convictions, nor does he seek to controvert the facts or constitutionality of his predicate violent felony convictions. Rather, he claims that New York's persistent felony offender sentencing scheme violates his jury trial right under the Sixth Amendment to the United States Constitution.

II.PARTIES' CONTENTIONS

Defendant asks this court to set aside his sentence pursuant to CPL §440.20 on the ground that New York's persistent violent felony sentencing scheme (see PL §70.08) is unconstitutional under the Sixth Amendment of United States Constitution as reflected in the decisions of the United States Supreme Court in Cunningham v. California (549 US 270 [2007]), Blakely v. Washington (542 US 296 [2004]), and Ring v. Arizona (536 US 584 [2002]). He argues that these cases, holding that the United States Constitution prohibits a judge from increasing a sentence beyond the statutory maximum based on facts not found by a jury beyond a reasonable doubt, require this court to set aside its previously imposed sentences and re-sentence defendant to an indeterminate term of seven and one-half to fifteen years on each of his Article 160 convictions.

The People respond that the rule of Ring, Blakely and Cunningham, and the Court's decision in Apprendi v. New Jersey 530 US 466 (2000), from which they derive, do not apply to the fact of a prior conviction. The People argue that those cases contain a recidivism exception to the general rule based upon the Court's earlier ruling in Almendarez-Torres v. United States, 523 US 224 (1998), that a judge may constitutionally consider the fact of a prior conviction in enhancing a sentence beyond the statutory maximum. They maintain that the Supreme Court has never deviated in any of its Apprendi jurisprudence from the essential holding of Almendarez-Torres in this regard.

III.LEGAL STANDARDS

A.CPL §440.20

Criminal Procedure Law §440.20(1) provides that at any time after the entry of judgment, the court in which it was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was "unauthorized, illegally imposed or otherwise invalid as a matter of law." The party challenging the validity of the sentence bears the burden of coming forward with supporting allegations sufficient to create an issue of fact. (People v. Session, 34 NY2d 254, 255-256 [1974]; People v. Adams, 164 AD2d 546 [2d Dept.], lv. den., 77 NY2d 957 [1991]).

If the issue raised in the motion has been determined upon direct appeal, the court must deny it on a subsequent CPL §440.20 motion, absent a retroactive change in the controlling law. (CPL §440.20[2]). Where the claim has previously been determined upon a prior motion or proceeding other than a direct appeal and there has been no retroactive change in the law, the [*3]court has the discretion to deny the motion. (CPL §440.20[3]). Despite this discretionary power to bar re-litigation in a second post-conviction motion, however, a court may grant such a motion "in the interest of justice and for good cause shown," if it is "otherwise meritorious." (Id.). The statutory procedure involved thus provides that a court confronted with a vacation of sentence motion which is subject to discretionary denial under CPL §440.20(3) may, in its discretion, either summarily deny the motion or proceed to consider its merits. (CPL §440.30[2]).

B.CPL §440.30

In determining whether a motion is meritorious, the court must grant the motion without conducting a hearing if the moving papers allege a ground constituting a legal basis for the motion (CPL §440.30[3][a]), which ground, if factually based, is supported by sworn allegations of fact (CPL §440.30[3][b]), and the sworn factual allegations essential to the motion are either conceded by the People or are conclusively substantiated by unquestionable documentary proof. (CPL §440.30[3][c]).

Alternatively, upon reaching the merits, the court may deny the motion without a hearing, if the moving papers, inter alia, fail to allege a ground constituting a legal basis for the motion (CPL §440.30[4][a]). Only in the event that the court does not determine the motion pursuant to the other provisions of CPL §440.30 must a hearing be conducted. (CPL §440.30[5]).

C.Persistent Violent Felony Offender Scheme

Commonly referred to as the mandatory persistent felony statute, New York law defines a persistent violent felony offender ("PVFO") as follows:

1. (a) A persistent violent felony offender is a person who stands convicted of a violent felony offense . . . after having been subjected to two or more predicate violent felony convictions . . . .

A.The Continuing Vitality of Almendarez-Torres in the Supreme Court's Jurisprudence

In Almendarez-Torres v. United States, supra, the United States Supreme Court upheld a sentencing scheme which increased the maximum penalty for a foreign national who illegally returned to the United States after deportation and whose initial deportation resulted from an aggravated felony conviction. The Court held that the prior conviction was a sentencing factor, not an element of the crime, and so need not be pleaded in an indictment nor found by a jury beyond a reasonable doubt. (See also Jones v. United States, 526 US 227, 243 n.6 [1999]). The Court noted that requiring prosecution to charge previous felonies and prove them before a jury would risk significant prejudice. (See Almendarez-Torres, supra, 523 US at 234-235).

When Apprendi was decided, the continued vitality of Almendarez-Torres was subject to question. But while the Apprendi Court criticized Almendarez-Torres (see Apprendi, supra, 530 [*4]US at 489-490 ["it is arguable that Almendarez-Torres was incorrectly decided"]), it also explicitly created an exception to the Sixth Amendment rule it announced that day which preserved its essential holding. "Other than the fact of a prior conviction," the Apprendi Court declared, "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." (Apprendi v. New Jersey, supra, 530 US at 490 [emphasis added]).

Since that time, the Supreme Court has never overturned, and has repeatedly reaffirmed, Apprendi's recidivism exception, relying upon the holding of Almendarez-Torres that a prior conviction is not an element of the offense which required fact-finding by a jury in order to pass constitutional muster. (See James v. United States, —US—, 127 SCt 1586, 1600 n.8 [2007] ["[W]e have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes" (citing Almendarez-Torres)]; Cunningham v. California, —US—, 127 SCt 856, 868 [2007][California sentencing scheme allowing judges to engage in sentence-elevating fact-finding violates Apprendi's "bright-line rule" that "[e]xcept for a prior conviction," such fact-finding is solely the province of a jury][emphasis added]; Blakely v. Washington, 542 US 296, 301 [2004][overturning state sentencing scheme's provision for judicial fact-finding to enhance sentence beyond statutory range, as neither having been admitted by the defendant nor found by a jury, but observing that it was applying the rule of Apprendi, including its recidivism exception]; Ring v. Arizona, 536 US 584, 597 n.4 [in holding Arizona statutory scheme permitting judge to consider aggravating circumstances in capital sentencing to violate Sixth Amendment under Apprendi, Court observed that the defendant made no challenge to holding of Almendarez-Torres that fact of prior conviction may be found by sentencing judge as ground for increasing sentence beyond statutory maximum]).

In the instant case, this court enhanced defendant's

sentence in accordance with the provisions of CPL §400.16(1)

that:

must be followed in any case where it appears that a defendant who stands convicted of a violent felony offense as defined in section 70.02 of the penal law has previously been subjected to two or more predicate violent felony convictions . . . .

The prosecutor followed the statutory filing and service procedures of CPL §§ 400.15 and 400.16; defendant, advised by counsel, admitted that he was the person who had been convicted of the prior violent felony offenses mentioned in the statement and that the convictions were constitutionally obtained; and this court, having uncontroverted evidence before it that defendant had twice previously been convicted of violent felony offenses, followed the dictate of the rule and determined that defendant had been subjected to two predicate violent felony convictions and was mandatorily subject to sentencing as a persistent violent felony offender. In sum, this court imposed persistent violent felony offender sentences on defendant's conviction solely because of the facts it found as to his two prior violent felony convictions. No additional fact-finding occurred as a precursor to the sentences imposed. Thus, this court, having found, as a fact used [*5]to enhance defendant's sentence, only that he had been twice previously convicted of violent felony offenses, acted in complete conformity with Sixth Amendment requirements as set forth in Apprendi, Ring, Blakely and Cunningham, under the Almendarez-Torres recidivism exception.

Accordingly, to the extent that defendant Inverso relies on the Supreme Court's post-Apprendi Sixth Amendment jurisprudence to support his argument for setting aside his PVFO sentence, his motion is without legal basis and is denied. (CPL §440.30[4][a]).

B.Rejection of Sixth Amendment Challenges to New York's Mandatory Persistent Violent Felony Offender Sentencing Scheme Under Apprendi

The New York Court of Appeals has similarly consistently recognized the continued vitality of the Almendarez-Torres principle as reaffirmed as by Apprendi and its progeny. For example, in People v. Rivera, 5 NY3d 61 (2005), the Court of Appeals stated:

The Supreme Court has held that a judge (as opposed to a jury) may find the fact of a defendant's prior conviction without violating the Sixth Amendment . . . .

Moreover, New York's appellate courts have specifically upheld the constitutionality of New York's mandatory persistent violent felony offender sentencing scheme of PL § 70.08 against Sixth Amendment challenges under Apprendi, based upon the Almendarez-Torres exception. (See, e.g., People v. Boyer, supra, 6 NY3d at 433 [rejecting appellant's contention that PVFO statute is unconstitutional under Apprendi principles]; People v. Leon, 10 NY3d 122 [2008][finding that defendant was convicted of prior violent felonies and therefore subject to sentencing as persistent violent felony offender not impermissible finding of fact under Apprendi]; People v. Licea, 44 AD3d 690 [2nd Dept. 2007]; People v. Adelman, 36 AD3d 926 [2nd Dept. 2007]; People v. Felciano, 285 AD2d 371 [1st Dept.], lv. den., 96 NY2d 939 [2001]; People v. Cherry, 282 AD2d 333 [1st Dept.], lv. den., 96 NY2d 827 [2001]; People v. Melendez, 282 AD2d 409 [1st Dept.], lv. den., 97 NY2d 685 [2001]; People v. Wilkonson, 281 AD2d 373 [1st Dept.], lv. den., 96 NY2d 926 [2001]; People v. Grivas, 281 AD2d 346 [1st Dept.], lv. den., 96 NY2d 901 [2001]).^[FN1]

In view of the reaffirmation of the constitutionality of the PVFO sentencing scheme by New York courts, there is no legal basis for defendant's contention that New York's persistent felony offender sentencing scheme violates his Sixth Amendment right to a jury trial. Accordingly, his motion to set aside his sentences in Indictment Nos. 12429/93, 511/94 and [*6]1076/94 is denied pursuant to CPL §440.30(4)(a).

C.Remaining Issue

The People concede, and this court concurs, that the court illegally sentenced defendant as a mandatory persistent violent felon on the charge of robbery in the third degree, a non-violent felony, under Indictment 7858/93. Accordingly, this court's sentence on that count is vacated and defendant will be produced before this court for re-sentencing on that count.

IV.CONCLUSION

For the reasons stated, defendant's motion to set aside his sentences is granted solely to the extent that defendant's sentence under Indictment No. 7858/93 is set aside and defendant will be returned to this court for re-sentencing on that conviction. In all other respects his motion is denied without a hearing. The clerk is directed to assign counsel pursuant to County Law 18-B for the re-sentencing.

The foregoing constitutes the decision and order of the court.

Marcy L. Kahn, J.S.C.

Dated: New York, New York

May 6, 2008