THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
CHARLES DANIELS, Appellant.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
BYRON ROBINSON, Appellant.
Court of Appeals of the State of New York.
Argued April 26, 2005. Decided June 14, 2005.*739 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.
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 in each case should be affirmed. *740 Defendants seek to have their persistent felony offender sentences (Penal Law § 70.10; CPL 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 U.S. 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).
In each case: Order affirmed in a memorandum.