THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
OLIVER GIOLA WEST, JR., Appellant.
Court of Appeals of the State of New York.
Decided June 14, 2005.Center for Appellate Litigation, New York City (Jan Hoth of counsel), for appellant.
*741 Robert M. Morgenthau, District Attorney, New York City (Morrie I. Kleinbart of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
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 U.S. 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]).
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.