
    [833 NE2d 704, 800 NYS2d 369]
    The People of the State of New York, Respondent, v Oliver Giola West, Jr., Appellant.
    Decided June 14, 2005
    APPEARANCES OF COUNSEL
    
      Center for Appellate Litigation, New York City (Jan Noth of counsel), for appellant.
    
      
      Robert M. Morgenthau, District Attorney, New York City (Morrie I. Kleinbart of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. We need not decide whether defendant could raise his Apprendi v New Jersey (530 US 466 [2000]) argument for the first time on a motion to set aside his sentence pursuant to CPL 440.20 in view of the Court’s holding that New York’s persistent felony offender statute is constitutional (see People v Rivera, 5 NY3d 61 [2005]).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.  