        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

313
KA 15-00111
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RUDOLPH YOUNG, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Monroe County (Francis A. Affronti, J.), entered
December 15, 2014. The order denied the motion of defendant to set
aside his sentence pursuant to CPL 440.20.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from an order that denied his
motion pursuant to CPL 440.20 seeking to set aside the sentence
imposed upon his conviction of criminal possession of stolen property
in the fourth degree (Penal Law § 165.45 [4]), for which he was
sentenced as a persistent felony offender to an indeterminate prison
term of 25 years to life. We previously affirmed the judgment of
conviction on defendant’s direct appeal, specifically rejecting his
contention that he was improperly sentenced as a persistent felony
offender (People v Young, 255 AD2d 907, 908, affd 94 NY2d 171).
Contrary to defendant’s current contention, we conclude that the
subsequent vacatur of a separate judgment of conviction (see Young v
Conway, 761 F Supp 2d 59, affd 698 F3d 69, cert denied ___ US ___, 134
S Ct 20) does not require vacatur of his sentence and a new persistent
felony offender hearing. Neither of the felonies at issue in Young v
Conway was used as a predicate felony to determine defendant’s
eligibility to be sentenced as a persistent felony offender (see Penal
Law § 70.10 [1]; cf. People v Dozier, 78 NY2d 242, 248), and
defendant’s lengthy and serious criminal history, including a murder
conviction from North Carolina, was sufficient to support Supreme
Court’s determination that defendant’s “history and character,” along
with the “nature and circumstances of his criminal conduct,” warranted
imposition of a persistent felony offender sentence, even without
consideration of the since-vacated conviction. We note that defendant
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                                                         KA 15-00111

admitted to the police that he had committed between 45 and 60
burglaries during a two-month period in 1988, and he later admitted to
a probation officer that he committed between 140 and 150 burglaries
between July 1988 and January 1990. Moreover, the court, in denying
defendant’s motion, stated that it did not consider the vacated
conviction in sentencing defendant as a persistent felony offender,
and we perceive no basis in the record to doubt that representation.
In any event, the record is clear that the court intended to sentence
defendant as it did without considering any of the facts relating to
the vacated conviction, and there is therefore no need to remit for
resentencing (see People v Robles, 251 AD2d 20, 21, lv denied 92 NY2d
904; People v Capers, 177 AD2d 992, 993-994, lv denied 79 NY2d 944).

     We reject defendant’s further contention that the Grand Jury
Clause of the New York State Constitution (NY Const, art I, § 6)
required that he be indicted on a class A-I felony before the court
could impose the sentence of imprisonment authorized for a class A-I
felony. That section merely requires that, absent a waiver, a person
facing a felony charge must be indicted by a grand jury. It does not
require that a defendant facing the possibility of sentencing as a
persistent felony offender be indicted on an A-I felony, nor does it
render improper the Legislature’s authorization of the imposition of
an A-I felony sentence for a persistent felon. Finally, we reject
defendant’s contention that the persistent felony offender statutes
(Penal Law § 70.10; CPL 400.20) violate the Federal Constitution. The
Court of Appeals has repeatedly rejected that contention (see People v
Quinones, 12 NY3d 116, 125-131, cert denied 558 US 821; People v
Rosen, 96 NY2d 329, 334-335, cert denied 534 US 899) and, contrary to
defendant’s contention, nothing in Alleyne v United States (___ US
___, 133 S Ct 2151) requires a different result. Inasmuch as the
factors that made him eligible for enhanced sentencing were prior
convictions that were based on proof beyond a reasonable doubt, those
factors were not “based on [the court’s] finding by a preponderance of
evidence” (Alleyne, ___ US at ___, 133 S Ct at 2163).




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
