The opinion of the court was delivered by: Jones, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
This appeal presents another Apprendi*fn1 challenge to New York's discretionary persistent felony offender sentencing scheme. The primary issue before us is whether, in light of Cunningham v California (549 US 270 ), this sentencing scheme violates Apprendi and defendant's due process and Sixth Amendment rights. We again uphold the constitutionality of New York's discretionary persistent felony offender sentencing scheme and further hold that defendant's constitutional rights were not violated.
FACTS AND PROCEDURAL HISTORY
On April 21, 2004, at about 12:05 p.m., the police received a radio run of a burglary in progress on the fifth floor of a six-floor apartment building located in Brooklyn, New York. The building, which is part of a New York City Housing Authority Development, had two stairwells (Stairwell A and Stairwell B). The stairwells met on the fourth floor and were connected by a door. The radio run included physical descriptions of two perpetrators. Within minutes of the radio run, two police officers entered the building and split up, each going up one stairwell. On the fourth floor, the officer going up Stairwell A looked into Stairwell B through the door window and observed defendant, who matched the physical description of one of the perpetrators, as he was coming down from the fifth floor carrying a duffel bag. At about this time, the other officer was coming up Stairwell B. Seeing this, defendant quickly changed direction and proceeded to Stairwell A. When defendant opened the door to Stairwell A, he came upon the first officer and his eyes "popped open" in surprise. The officer asked defendant who he was and what he was doing in the building. Defendant, who was not a resident of the building, tried to evade the officer, who, in turn, tried to prevent defendant from leaving by reaching out and grabbing his arm. Defendant tried to break free by swinging at the officer with his other arm. After a brief struggle, the police subdued defendant and placed him under arrest. One of the officers went to the fifth floor (the floor defendant was coming from) where he discovered that the door to apartment 5-I was open, the lock on the door broken, the door frame damaged and the apartment ransacked. After taking defendant to a police precinct for processing, the police officers searched the bag defendant had been carrying and recovered burglary tools and property later determined to be property stolen during the burglary.
Defendant, arguing that his arrest was the product of an illegal stop and detention, and that everything flowing from this illegality was tainted, moved to suppress the statement he made to a police officer after his arrest (he confessed to participating in the burglary as a "lookout") and the property recovered from his duffel bag. Supreme Court held a Dunaway/Huntley hearing and considered defendant's arguments. In light of the evidence adduced at the hearing, including the fully credited testimony of the arresting police officer, Supreme Court rejected defendant's arguments and denied the motion in its entirety.
A jury ultimately convicted defendant of burglary in the third degree (Penal Law § 140.20 ["(a) person is guilty of (third degree burglary) when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein"]), a class D felony which gives rise to an indeterminate sentence. Under the Penal Law, the maximum term for such sentence is at least three years and no more seven years (Penal Law § 70.00 [d]). Prior to sentencing, the People moved for Supreme Court to sentence defendant as a discretionary persistent felony offender. In so moving, the People sought to treat defendant's class D felony as a class A-I felony (Penal Law § 70.10 ) and have defendant sentenced to an indeterminate prison term of 25 years to life (Penal Law § 70.00 [a]; [a][i]). Defendant opposed the motion, arguing that the discretionary persistent felony offender sentencing scheme was unconstitutional under Apprendi and its progeny.
Supreme Court held a hearing pursuant to CPL 400.20 to determine whether to adjudicate defendant a discretionary persistent felony offender and impose a recidivist sentence. As set forth in CPL 400.20 (5), the court first concluded that defendant was a discretionary persistent felony offender based on defendant's four prior felony convictions -a 1983 robbery conviction, a 1986 grand larceny conviction, a 1989 attempted robbery conviction and a 1994 attempted criminal sale of a controlled substance conviction (Penal Law § 70.10 [a]). The court determined that defendant was eligible to be sentenced as a discretionary persistent felony offender and that a recidivist sentence was warranted. Defendant was sentenced to an indeterminate prison term of 18 years to life*fn2. The Appellate Division unanimously affirmed, concluding, among other things, that the police had reasonable suspicion to stop and detain defendant based on his "attempted flight" and "the temporal proximity between the reported robbery and the officers' arrival on the scene." The court also concluded that in light of this Court's decisions in People v Rosen (96 NY2d 329 ) and People v Rivera (5 NY3d 61 ), defendant's Apprendi challenge lacked merit. A Judge of this Court granted defendant leave to appeal.
Defendant seeks to have his conviction reversed on two grounds. First, he argues that Supreme Court erred in not suppressing his confession and the property recovered from his bag because they were the product of an illegal stop and detention. Second, defendant claims ineffective assistance of trial counsel based on his counsel's failure to argue that even if the stop and detention were legal, the recovered property should have been suppressed because of the illegality of the warrantless search of defendant's bag at the precinct.
Regarding defendant's first contention, Supreme Court's determination that the police possessed reasonable suspicion to stop and detain defendant (see People v DeBour, 40 NY2d 210, 223 ; People v Hollman 79 NY2d 181, 184-185 ; People v McIntosh, 96 NY2d 521, 525 ), a mixed question of law and fact, was not disturbed by the Appellate Division and is supported by the record. Accordingly, this determination is beyond our further review (see People v Harrison, 57 NY2d 470, 477-478 ; People v Allen, 9 NY3d 1013, 1015 ).
With respect to defendant's ineffective assistance claim, we note that the facts surrounding the search of defendant's bag were not fully developed at the suppression hearing. Accordingly, it is not clear what counsel knew or did not know regarding the search, such as whether the search was in accordance with police inventory procedures. Nor is it clear that this argument would have resulted in suppression of the evidence. Therefore, on the record before us, we are unable to determine that counsel's assistance was ineffective.
Defendant also argues that his recidivist sentence violates Apprendi. Specifically, defendant asserts that in light of Cunningham, the sentence violates his right to due process and trial by jury, and New York's discretionary persistent felony offender sentencing scheme is constitutionally infirm. Defendant's arguments are unavailing.
In Apprendi v New Jersey (530 US 466 ), the Supreme Court held that, "[o]ther 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" (Apprendi, 530 US at 490). In so holding, the Apprendi Court's goal was to prevent legislative attempts to "remove from the [province of the] jury" factual determinations that impact the maximum punishment available for a statutory offense (id. [internal quotation marks omitted])*fn3. Apprendi and its progeny are rooted in the United States Constitution's Sixth Amendment, which provides every person accused of a crime the right to "trial by an impartial jury," and emanated from the Supreme Court's prior decisions in Almendarez-Torres v United States (523 US 224, 226-227  [judicial factfinding of a defendant's prior conviction and consideration of same at sentencing is not a violation of the Sixth Amendment]) and Jones v United States (526 US 227, ...