Although at common law the right to a jury determination of all facts essential to punishment was jealously guarded (see e.g. People ex rel. Cosgriff v Craig, 195 NY 190 [1909]), more recent history in this and many other states has witnessed judicial acquiescence in legislative initiatives that effectively resituate fact-finding power necessary to the justification of punishment from the jury to judges. This transfer has been effected most frequently by statutes permitting the enhancement of otherwise prescribed sentences based on judicial findings, often by a mere preponderance, respecting a defendant’s criminal history, the circum*60stances of the offense before the court, and what the statutorily relevant findings collectively portend respecting the risk posed by the defendant’s eventual reintroduction to society. It was widely believed that these kinds of findings fell comfortably within the discretionary power judges have traditionally exercised in sentencing criminal defendants and that they neither diminished the fact-finding prerogative of the jury nor compromised the Sixth Amendment right to a jury trial. This perception we now know was wrong, indeed dramatically so. In Apprendi v New Jersey (530 US 466 [2000]) the Supreme Court held that “[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” (id. at 490 [internal quotation marks and citation omitted]). And, subsequently, in Ring v Arizona (536 US 584 [2002]), Blakely v Washington (542 US 296 [2004]) and Cunningham v California (549 US 270 [2007]), the Court made it unambiguously clear that judicial authority to impose punishment was constitutionally tied to and limited by the jury verdict and any admissions by defendant. In Blakely, the Court, citing Ring, stated emphatically, “[o]ur precedents make clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” (542 US at 303), and in Cunningham it reiterated that “[i]f the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied” (549 US at 290 [emphasis added]).
The rule of Apprendi is not so much a limitation on the power of judges, but a reassertion of the prerogative constitutionally reserved to the jury to determine facts necessary to the imposition of punishment at a prescribed level. Only a single exception to this rule of constitutional power allocation has been recognized and that is the “narrow” one carved out in Almendarez-Torres v United States (523 US 224 [1998]), where judicially effected sentence enhancements based solely on proof of prior convictions were permitted (see Apprendi, 530 US at 490).
At issue here is the constitutional validity of sentence enhancements imposed pursuant to New York’s statutes governing the sentencing of persistent felony offenders (CPL 400.20; Penal Law § 70.10). Enhanced sentencing under these provi*61sions is conditioned upon a jury verdict convicting a defendant of a felony and two judicial findings described in CPL 400.20 (D:
“Such sentence may not be imposed unless, based upon evidence in the record of a hearing held pursuant to this section, the court (a) has found that the defendant is a persistent felony offender as defined in subdivision one of section 70.10 of the penal law, and (b) is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest” (emphasis added).
Finding “a” must be made on proof beyond a reasonable doubt. Finding “b,” however, may under the statute rest on a mere preponderance of the evidence (CPL 400.20 [5]).
On its face, this provision raises Apprendi issues, since it appears to afford a judge power to impose an enhanced sentence based upon facts not found by the jury or within the AlmendarezTorres carve-out, and to make the findings upon which the statutory enhancement is evidently conditioned on less than proof beyond a reasonable doubt. The constitutionality of sentences imposed under this sentencing scheme has, not surprisingly, been a practically constant subject of litigation since Apprendi.
In People v Rosen (96 NY2d 329 [2001], cert denied 534 US 899 [2001]), and subsequently in more extended form in People v Rivera (5 NY3d 61 [2005], cert denied 546 US 984 [2005]) and People v Quinones (12 NY3d 116 [2009], cert denied 558 US —, 130 S Ct 104 [2009]), we upheld judicially enhanced, persistent felony offender sentences upon the following reasoning: a defendant’s status as a persistent felony offender is determined solely on the basis of his or her prior convictions (see Penal Law § 70.10 [1] [a]), the fact of which, pursuant to AlmendarezTorres, may be proved in a non-jury proceeding; that status having been permissibly established by a judge, the defendant, without more, is “subject to” or “eligible for” enhanced sentencing, with the final determination as to whether he or she should be sentenced within the now available enhanced sentencing range depending upon the discretion of the sentencing judge exercised in accordance with the criteria set forth in subsection (b) of CPL 400.20 (1) (supra). We characterized this mandatory *62exercise of discretion (see CPL 400.20 [9]) as nothing more remarkable than the setting of a sentence within a permissible range based on traditionally considered sentencing factors.
This rationale has, in turn, been the focus of extensive federal habeas litigation. In March of this year a unanimous panel of the Second Circuit found that its persistence was unreasonable subsequent to the Supreme Court’s decision in Blakely, and, accordingly, that our decisions in Rivera and Quinones misapplied clearly established Supreme Court precedent (Besser v Walsh, 601 F3d 163 [2010]). Besser, however, was shortlived. After en banc reconsideration, it was vacated by the Second Circuit in a divided ruling (Portalatin v Graham, 624 F3d 69 [2010]). Portalatin, though, hardly places a federal imprimatur upon our Apprendi jurisprudence. It was decided under the extraordinarily deferential review standard applicable in federal habeas proceedings pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 (Pub L 104-132, 110 US Stat 1214) and, accordingly, was issued with the remarkable AEDPA caveat,
“ ‘we decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court’s interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time.’ Policano v. Herbert, 507 F.3d 111, 115 (2d Cir.2007)” (Portalatin, 624 F3d at 79).
We agreed to hear the current round of appeals containing Apprendi issues subsequent to Besser but before Portalatin. And, while I think it safe to say that we would not have consented to revisit the Apprendi issues raised by New York’s persistent felony offender sentencing scheme had we anticipated Besser’s vacatur, it seems to me that the question left undecided by Portalatin, namely, whether our interpretation of the controlling holdings of the United States Supreme Court has been correct, merits yet another close look. I do not believe that our persistent felony offender sentencing provisions can ultimately survive constitutional scrutiny and, practically, see nothing to be gained, and much to be lost, in clinging, during what will undoubtedly be further protracted litigation, to a legally flawed sentencing scheme whose entirely proper objectives are capable of being met without constitutional offense. Numerous states with similarly flawed sentencing provisions have taken the judicial and, presumably, the legislative measures necessary to *63bring their sentencing statutes into agreement with Apprendi (see State v Bell, 283 Conn 748, 931 A2d 198 [2007]; State v Lewis, 590 A2d 149 [Me 1991]; State v Foster, 109 Ohio St 3d 1, 845 NE2d 470 [2006]; State v Fairbanks, 688 NW2d 333 [Minn Ct App 2004]; State v Maugaotega, 115 Haw 432, 168 P3d 562 [2007]; State v Frawley, 143 NM 7, 172 P3d 144 [2007]; State v Gomez, 239 SW3d 733 [Tenn 2007]; State v Price, 217 Ariz 182, 171 P3d 1223 [2007]). There is no reason why New York should not do so as well.
As Chief Judge Kaye and Judge Ciparick pointed out in their dissents in Rivera, Rosen’s attempt at harmonizing New York’s persistent felony offender sentencing scheme with Apprendi was, at the time, at least arguably viable. Walton v Arizona (497 US 639 [1990]), although cast in doubt by Apprendi, had not yet been overruled, and Walton seemed to support the notion, essential to Rosen’s rationale, that a defendant’s mere eligibility for an enhanced sentence was sufficient to vest a judge with authority to impose such a sentence, notwithstanding the need for a further judicial finding to actually permit the sentence. Once Walton was overruled by Ring, however, our ensuing cases, Rivera and Quinones, were deprived of essential support, for Ring, applying Apprendi, held that where a jury verdict was not itself sufficient to support the punishment—where the imposition of punishment could not go forward before some additional judicial finding was made—the punishment could not be constitutionally imposed (536 US at 602). This basic point— that the power of the judge to impose a particular sentence derives from and can be no greater than that afforded by the verdict (or the defendant’s admissions)—was, as noted, forcefully reiterated in Blakely (542 US at 303) and Cunningham (549 US at 290) and, indeed, characterized in both decisions as a “bright line” rule.
Under the New York persistent felony offender sentencing scheme, it is obvious that, even after a defendant has been found a persistent felony offender by reason of a guilty verdict and Almendarez-Torres-sheltered judicial findings as to prior felony convictions, he or she still may not be given an enhanced, class A-I felony sentence. Regardless of whether the defendant is at that point theoretically eligible for or subject to enhanced sentencing, the actual power to impose such a sentence cannot be deemed to have accrued under Apprendi because the enhanced punishment is not statutorily authorized “solely on the basis of the facts reflected in the jury verdict or admitted *64[or on the basis of prior convictions]”; it depends as well on the additional, not yet made discretionary findings as to the defendant’s history, character and the circumstances of the crime(s) expressly mandated by the statute (see CPL 400.20 [1], [9]). The statute is clear that, absent those findings, a defendant must be sentenced as a second felony offender (see CPL 400.20 [10]).
The task set the sentencing judge by the statute, then, is not, properly understood, one of exercising discretion to situate a sentence within an already permissible enhanced range; it is rather one of determining whether, after prior convictions have been taken into account, there exists a factual predicate to access the enhanced range and impose a sentence exceeding that which could be imposed based on the jury verdict and the defendant’s admissions alone. This judicial exercise, at once removing from the jury the power constitutionally reserved to it to assess facts that increase the prescribed range of penalties to which a defendant is exposed (Apprendi, 530 US at 490) and depriving the defendant of his right to a jury trial at which the prosecution must prove each and every element essential to justify the sentence beyond a reasonable doubt, lies squarely within Apprendi’s prohibition.
While this Court has characterized the discretionary findings described in CPL 400.20 (1) (b) as inessential to eligibility for enhanced sentencing (Rivera, 5 NY3d at 68), that is not a constitutionally significant gloss. It does not and cannot alter the essential constitutional defect in the statute, namely, that there is no reading of it under which the subsection (b) judicial determination—one clearly necessitating findings significantly more far-reaching than the recidivism findings already made pursuant to the statute’s subsection (a), and going well beyond the facts conceivably established by a verdict or admitted by the defendant—may be deemed dispensable to the actual imposition of an enhanced sentence.
Even if it were possible to imagine a case such as was hypothesized in Rivera (5 NY3d at 70-71), in which a persistent felony offender sentence was, in accordance with the statute, based solely on the verdict and Almendarez-Torres-sheltered findings—and, given the nature of the judicial “opinion” required by the statute this appears impossible—it would remain that the natural and nearly inevitable effect of this enactment is that judges, and not juries, are cast in the role of making factual findings upon which the imposition of a sentence in an enhanced range depends. It does not matter whether these *65findings themselves require the sentence or whether, as the Rivera court seemed to find significant, they merely permit a sentence the basis for which has otherwise been established; in either case they are necessary to the enhancement’s imposition and under Apprendi may not be constitutionally taken from the jury and committed to a judge (Blakely, 542 US at 305 n 8). Under Apprendi, “the relevant inquiry is not one of form, but of effect” (530 US at 494), and the effect of New York’s persistent felony offender sentencing statutes, as distinguished from any abstract scenario of benign application, is that defendants are, in their ministration, regularly exposed to punishment greater than that which could be imposed upon the jury verdict, the defendant’s admissions and prior convictions alone. It is to this real effect that our jurisprudence should respond.
This case provides a vivid example of impermissible judicial fact-finding in support of sentence enhancement. The jury acquitted defendant of two felony murder counts, evidently upon the finding that the underlying felony, arson, had not been established. And, indeed, the central issue at trial had been whether defendant actually set the fatal blaze or whether it started as an unintended consequence of a victim’s cigarette coming into contact with a gasoline-doused surface. In the postverdict sentencing proceedings, however, the court, in the course of setting upon the record his findings in support of the enhanced sentences he was about to impose, stated: “The circumstances surrounding this case, I mean, let us think about this: Going in and pouring gasoline on a person, lighting that gasoline, killing and maiming these people, if that is not a heinous crime, I don’t know what is” (emphasis added).
The judicial fact-finding in this case did not merely supplement the verdict, as ordinarily occurs in consequence of following the statute, it materially differed from, indeed conflicted with it. The court’s crucial enhancement finding that defendant lit the gasoline was one that the jury specifically declined to make when it acquitted defendant on the arson-based counts. It is one thing for a court to make enhancement findings that add to the predicate supplied by the verdict, defendant admissions and prior convictions—that is objectionable enough under Apprendi—it is quite another when the court’s findings essentially nullify a critical component of the verdict. Yet, under this statute that can happen because the judge is directed to form an “opinion” respecting “the nature and circumstances of [the defendant’s] criminal conduct” and may, unlike the jury, do so *66upon a mere preponderance of the evidence. Here, the transfer of essential fact-finding power from the jury to the judge has achieved undoubted perfection and is on numerous counts undoubtedly unconstitutional. It will suffice for present purposes to observe that this sort of fact-finding is absolutely antithetical to the Sixth Amendment guarantee of a jury trial and is, of course, quintessentially violative of Apprendi.
Inasmuch as it appears clear that defendant was unconstitutionally deprived of a jury determination of facts essential to justify his enhanced sentences, lack of preservation should not be deemed an impediment to our consideration of his Apprendibased arguments. There can be no more pronounced a departure from the mode of proceedings prescribed by law than the denial of a criminal defendant’s right to have each and every element necessary to imposition of the authorized punishment proved to a jury beyond a reasonable doubt. The rules of preservation are not legitimately interposed to avoid such a fundamental claim (see People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]), and our cases, fairly construed, have not so held. We have held that the challenged sentencing scheme does not involve an Apprendi violation, we have not held that a meritorious Apprendi claim would be unreviewable for lack of preservation.
The Supreme Court in Cunningham had occasion to describe the rationale offered by the California Supreme Court in People v Black (35 Cal 4th 1238, 113 P3d 534 [2005]) in justification of the fact-finding role assigned the judge by the California Legislature under the Determinate Sentencing Law (DSL):
“In that court’s view, the DSL survived examination under our precedent intact. See 35 Cal. 4th, at 1254-1261, 113 P. 3d, at 543-548. The Black court acknowledged that California’s system appears on surface inspection to be in tension with the rule of Apprendi. But in ‘operation and effect,’ the court said, the DSL ‘simply authorizefs] a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range.’ 35 Cal. 4th, at 1254, 113 P. 3d, at 543. Therefore, the court concluded, ‘the upper term is the “statutory maximum” and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the *67principles set forth in Apprendi, Blakely, and Booker. ’ Ibid. . . .
“The Black court’s conclusion that the upper term, and not the middle term, qualifies as the relevant statutory maximum, rested on several considerations. First, the court reasoned that, given the ample discretion afforded trial judges to identify aggravating facts warranting an upper term sentence, the DSL
“ ‘does not represent a legislative effort to shift the proof of particular facts from elements of a crime (to be proved to a jury) to sentencing factors (to be decided by a judge). . . . Instead, it afforded the sentencing judge the discretion to decide, with the guidance of rules and statutes, whether the facts of the case and the history of the defendant justify the higher sentence. Such a system does not diminish the traditional power of the jury.’ Id., at 1256, 113 P. 3d, at 544 (footnote omitted)” (549 US at 289-290 [emphasis added]).
To this now all too familiar account by a state high court of its justification for retaining, subsequent to Apprendi, a sentencing scheme reposing essential fact-finding power in a judge rather than a jury, the Cunningham court replied,
“We cautioned in Blakely, however, that broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of our decisions. If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied. 542 U.S., at 305, and n. 8” (549 US at 290 [emphasis added]).
There is for Apprendi purposes no material difference between the California DSL and our persistent felony offender sentencing statutes. Nor is there any significant difference in the reasoning in our cases and that offered by the California Supreme Court in Black. While perhaps through some jurisprudential fluke our sentencing scheme will ultimately be spared the fate of the California DSL, I do not think it prudent to count on it.
*68Accordingly, while I concur with the majority’s modification, I dissent in part and would further modify the appealed order. Defendant is, in my view, entitled to the vacatur of his sentences on the first-degree assault counts and should be resentenced on those counts as a second felony offender.