The People of the State of New York, Respondent, v Byron Robinson, Appellant.

Argued April 26, 2005; decided June 14, 2005

People v Daniels, 308 AD2d 389, affirmed.

People v Robinson, 8 AD3d 1028, affirmed.

APPEARANCES OF COUNSEL

Legal Aid Society, New York City (Andrew C. Fine and Laura R. Johnson of counsel), for appellant in the first above-entitled action.

Robert M. Morgenthau, District Attorney, New York City (Mark Dwyer of counsel), for respondent in the first above-entitled action.

Legal Aid Bureau of Buffalo, Inc., Buffalo (Mary Good, David C. Schopp and Barbara J. Davies of counsel), for appellant in the second above-entitled action.

Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for respondent in the second above-entitled action.

Mischel Neuman & Horn, P.C., New York City (James E. Neuman of counsel), and Richard D. Willstatter for New York State Association of Criminal Defense Lawyers and another, amici curiae in the first and second above-entitled actions.

Memorandum.

The order of the Appellate Division in each case should be affirmed. Defendants seek to have their persistent felony offender sentences (Penal Law § 70.10; CP[*2]L 400.20) vacated. In contrast to People v Rivera (5 NY3d 61 [2005]), defendants did not preserve their claims under Apprendi v New Jersey (530 US 466 [2000]). The prosecution argues that this failure precludes our review of the issue, while defendants contend that an alleged Apprendi violation goes to the mode of proceedings and does not require preservation. Even if an Apprendi violation may be raised as an unpreserved mode of proceedings error (see People v Rosen, 96 NY2d 329, 335 [2001]), defendants would not prevail on the merits (see Rivera).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

In each case: Order affirmed in a memorandum.