
    [752 NE2d 844, 728 NYS2d 407]
    The People of the State of New York, Respondent, v Harry Rosen, Appellant.
    Argued February 7, 2001;
    decided April 3, 2001
    
      POINTS OF COUNSEL
    
      Andrew C. Fine, New York City, Edward S. Graves and M. Sue Wycoff for appellant.
    I. Appellant’s sentence of 25 years to life imprisonment as a discretionary persistent felon pursuant to Penal Law § 70.10 and CPL 400.20 violates his rights to notice of the charges against him, to a jury trial and to due process of law, as the enhanced sentence was premised upon uncharged facts found by the trial court by a mere preponderance of the evidence. (Apprendi v New Jersey, 530 US 466; Jones v United States, 526 US 227; Mullaney v Wilbur, 421 US 684; Almendarez-Torres v United States, 523 US 224; McMillan v Pennsylvania, 477 US 79; In re Winship, 397 US 358; United States v Gaudin, 515 US 506; Sullivan v Louisiana, 508 US 275; People v Perez, 83 NY2d 269; People v Hall, 48 NY2d 927.) II. Appellant was deprived of his common-law and due process rights and was placed in double jeopardy, when, over defense objection, and in the absence of fraud, misrepresentation or mistake, the court set aside appellant’s guilty plea and ordered him to trial. (People v Harris, 118 AD2d 583, 69 NY2d 850; Matter of Helbrans v Owens, 205 AD2d 775; People v Hardin, 67 AD2d 12; People v Damsky, 47 AD2d 822; People v Selikoff, 35 NY2d 227; People v Schultz, 73 NY2d 757; Matter of Hoffman v Fisher, 173 AD2d 826; Matter of Rush v Mordue, 68 NY2d 348; Matter of Van Leer-Greenberg v Massaro, 87 NY2d 996; People v Farrar, 52 NY2d 302.) III. The court’s refusal to grant a mistrial after the arresting police officer revealed statements by appellant concerning appellant’s prior criminal record, and that previously were ruled inadmissible, constituted failure to exercise discretion, since the court based its refusal on an error of law and violated appellant’s due process right to a fair trial. (People v Byrne, 17 NY2d 209; Matter of Plummer v Rothwax, 63 NY2d 243; People v Ortiz, 54 NY2d 288; People v Aphaylath, 68 NY2d 945; People v Cronin, 60 NY2d 430; People v Williams, 56 NY2d 236; People v George, 44 NY2d 269; Oregon v Kennedy, 456 US 667; People v Ferguson, 67 NY2d 383; People v Molineux, 168 NY 264.)
    
      Robert M. Morgenthau, District Attorney of New York County, New York City (Ilisa T. Fleischer and Morrie I. Kleinbart of counsel), for respondent.
    I. Defendant’s sentence, as a discretionary persistent felon, was constitutional. (People v Proctor, 79 NY2d 992; People v Oliver, 63 NY2d 973; People v Drummond, 40 NY2d 990; People v Morse, 62 NY2d 205; People v Callahan, 80 NY2d 273; People v Patterson, 39 NY2d 288, 432 US 197; People v Ahmed, 66 NY2d 307; People v Page, 88 NY2d 1; People v Thomas, 50 NY2d 467; Cancemi v People, 18 NY 128.) II. Vacatur of defendant’s guilty plea entitles him to no relief. (People v Jimenez, 227 AD2d 356; People v Iannelli, 69 NY2d 684, 482 US 914; People v Robles, 202 AD2d 166; People v McConnell, 49 NY2d 340; People v Farrar, 52 NY2d 302; People v Selikoff, 35 NY2d 227, 419 US 1122; People v Schultz, 73 NY2d 757; People v Outley, 80 NY2d 702; People v Frederick, 45 NY2d 520; People v Danny G., 61 NY2d 169.) III. A mistrial was not warranted by a witness’s inadvertent reference to precluded information, which could not have prejudiced defendant. (Matter of Plummer v Rothwax, 63 NY2d 243; People v Ortiz, 54 NY2d 288; People v Baptiste, 72 NY2d 356; People v Catten, 69 NY2d 547; People v Santiago, 52 NY2d 865; People v 
      
      Young, 48 NY2d 995; People v De Tore, 34 NY2d 199, cert denied sub nom. Wedra v New York, 419 US 1025; People v Aponte, 213 AD2d 415; People v Hendricks, 205 AD2d 333; People v Keller, 175 AD2d 312.)
    
      Eliot Spitzer, Attorney General, Albany (Edward Lindner, Preeta D. Bansal, Daniel Smirlock and Robin A. Forshaw of counsel), in his statutory capacity under Executive Law § 71. I.
    Precedent establishes that enhanced sentencing statutes are fully constitutional where the increased penalty is based upon proof of a prior conviction, and the sentencing Judge makes a requisite discretionary finding prior to imposing the enhanced sentence. (Almendarez-Torres v United States, 523 US 224; Walton v Arizona, 497 US 639; Jones v United States, 526 US 227; Graham v West Virginia, 224 US 616; People v Cooper, 78 NY2d 476; People v De Santis, 305 NY 44; Poland v Arizona, 476 US 147.) II. New York’s persistent felony offender statutes expose defendant to an enhanced penalty solely upon proof of two or more prior felony convictions. (Walton v Arizona, 497 US 639; People v Tichenor, 89 NY2d 769; People v Demperio, 86 NY2d 549; People v Scalza, 76 NY2d 604; Matter of Van Berkel v Power, 16 NY2d 37; People v Pagnotta, 25 NY2d 333; New York v Ferber, 458 US 747; People v Kaiser, 21 NY2d 86; Matter of Bell v Waterfront Commn. of N. Y. Harbor, 20 NY2d 54; People v Finkelstein, 9 NY2d 342.)
   OPINION OF THE COURT

Smith, J.

While riding on the subway one morning, two passengers observed defendant put his hand beneath the skirt of a four-year-old girl and fondle her. After the passengers notified the child’s mother, defendant attempted to escape but was caught and arrested. Defendant pleaded guilty to first degree sexual abuse, the maximum sentence for which is seven years. The plea court informed him that it would impose a sentence of three to six years. The court ordered a psychiatric evaluation to accompany defendant’s pre-sentence report.

Based on evidence contained in the psychological evaluation and the pre-sentence report, the prosecutor sought a hearing to have defendant sentenced as a persistent felony offender, which would authorize an increase in defendant’s sentence beyond the maximum seven years. The court gave defendant an opportunity to recant his plea and explained that if defendant chose to retain the plea and were adjudicated a persistent felon, the court would consider the prosecutor’s application and enhance the sentence. Defense counsel insisted on specific performance of the plea agreement, after which the court, sua sponte, vacated the plea and sent the matter to trial.

At a pre-trial hearing, the trial court instructed the prosecutor that the arresting officer was precluded from testifying about defendant’s prior sex-related convictions, prior sex crime record or any statements made by defendant that related to his RAP sheet. At trial, however, the officer made specific reference to the precluded testimony. Defense counsel objected and moved for a mistrial, arguing that the officer’s testimony was unduly prejudicial. The court denied defendant’s motion and gave a curative instruction to the jury, striking out the prejudicial statement.

Defendant was ultimately convicted of first degree sexual abuse and endangering the welfare of a child. The court held a hearing pursuant to CPL 400.20 to determine whether to adjudicate defendant a persistent felony offender. As set forth in CPL 400.20 (5), the court first concluded that defendant was a persistent felony offender based on two prior felony convictions — a 1983 sodomy conviction for abusing his 18-month-old son and a 1990 conviction for fourth degree criminal possession of stolen property. After oral arguments by counsel, the court adjudicated defendant a persistent felony offender and sentenced him to 25 years to life on the first degree sexual abuse count and one year on the endangering the welfare of a child count. The Appellate Division unanimously affirmed, concluding, among other things, that the trial court was warranted in vacating defendant’s plea and sending the case to trial because defendant refused to choose between accepting an enhanced sentence and withdrawing his plea. A Judge of this Court granted the defendant leave to appeal.

Defendant claims, for the first time on this appeal, that the discretionary persistent felony offender sentence enhancement provisions, set forth in Penal Law § 70.10 and CPL 400.20 (5), violated his right to trial by jury under Apprendi v New Jersey (530 US 466) and, thus, constituted an error affecting “the organization of the court or the mode of proceedings prescribed by law” reviewable on appeal even absent a timely objection before the sentencing court (People v Patterson, 39 NY2d 288, 294-296; see, People v Hernandez, 94 NY2d 552; People v Monroe, 90 NY2d 982). Defendant further maintains that application of the discretionary persistent felony offender statutes also violated his State right to a charge-specific indictment, rendering the indictment jurisdictionally defective and thus reviewable notwithstanding a failure to preserve any alleged error. We disagree with both contentions.

The Due Process Clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged” (In re Winship, 397 US 358, 364). The issue in Apprendi, as framed by the United States Supreme Court, was “whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt” (Apprendi, 530 US, at 469). The Court held:

“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. With that exception, we endorse the statement of the rule set forth in the concurring opinions in [Jones v United States, 526 US 227, 252-253]: ‘[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt’ ” (Apprendi, 530 US, at 490).

The Court held that the New Jersey hate crime statute — which required mandatory sentencing enhancement if a Trial Judge determined by a preponderance of the evidence that a defendant committed a crime with the intent to intimidate based on race, religion, color, gender, ethnicity, sexual orientation or handicap — violated the defendant’s Fourteenth Amendment due process rights (Apprendi, 530 US, at 468-469, 476-477). The Court explained that the New Jersey sentencing enhancement procedure was an “unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system,” and that facts regarding bias must be proved to a jury beyond a reasonable doubt (id., at 497). In this case, however, it was defendant’s prior felony convictions — an explicitly noted exception to the general rule in Apprendi — that initially subjected defendant to enhanced sentencing.

Under New York law, to be sentenced as a persistent felony offender, the court must first conclude that defendant had previously been convicted of two or more felonies for which a sentence of over one year was imposed. Only after it has been established that defendant is a twice prior convicted felon may the sentencing court, based on the preponderance of the evidence, review “[m]atters pertaining to the defendant’s history and character and the nature and circumstances of his criminal conduct * * * established by any relevant evidence, not legally privileged” to determine whether actually to issue an enhanced sentence (CPL 400.20 [5]). It is clear from the foregoing statutory framework that the prior felony convictions are the sole determinate of whether a defendant is subject to enhanced sentencing as a persistent felony offender. Then, the court must consider other enumerated factors to determine whether it “is of the opinion that a persistent felony offender sentence is warranted” (CPL 400.20 [9]). As to the latter, the sentencing court is thus only fulfilling its traditional role— giving due consideration to agreed-upon factors — in determining an appropriate sentence within the permissible statutory range (see, People v Farrar, 52 NY2d 302, 305-306). Defendant had no constitutional right to a jury trial to establish the facts of his prior felony convictions (see, Apprendi, supra, 530 US, at 488). Based on the foregoing, it is clear that there was no mode of proceedings error in this matter and, thus, any alleged error required preservation.

Similarly, defendant’s argument that his State and Federal constitutional rights were violated because the indictment did not contain a discretionary persistent felony offender charge is not a mode of proceedings error and would require preservation in order to be reviewable. The Supreme Court has clearly established that facts regarding “recidivism increasing the maximum penalty need not be so charged” (Jones v United States, 526 US 227, 248; see also, Oyler v Boles, 368 US 448, 453 [a defendant receives adequate notice that he will be subject to enhanced sentencing based on his history of recidivism “after the conviction on the substantive offense but before the sentencing”]).

We reject defendant’s contention that the court erred in refusing to declare a mistrial. That refusal did not constitute an abuse of discretion. Defendant’s contention that the trial court lacked statutory authority to vacate his plea was not preserved and because such an error would not constitute a mode of proceedings error, defendant’s failure to preserve precludes appellate review. Because the vacatur of the plea must thus be upheld, defendant’s remaining contention is rendered meritless.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.

Order affirmed.  