A. Hobbs, for appellant.
R. Mervine, for respondent.
Legal Aid Society, amicus curiae.
appeal presents another Apprendi challenge to New
York's discretionary persistent felony offender
sentencing scheme. The primary issue before us is whether, in
light of [ Alleyne v United States, (133 S.Ct. 2151');">133 S.Ct. 2151');">133 S.Ct. 2151');">133 S.Ct. 2151
)], 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" (People v Quinones, 12
N.Y.3d 116, 119).
Sixth and Fourteenth Amendments guarantee criminal defendants
in state courts "the right to a speedy and public trial,
by an impartial jury." To satisfy that right, the People
must prove each element of a crime beyond a reasonable doubt.
Among those elements is any fact - other than one admitted by
the defendant or involving the mere fact of a prior felony
conviction (Almendarez-Torres v United States, 523
U.S. 224 ) - that has the effect of increasing the
prescribed range of penalties to which a defendant is exposed
(see Apprendi, 530 U.S. at 489-490). For nearly two
decades, the United States Supreme Court has applied the
Apprendi rule in cases involving capital punishment
(Hurst v Florida, 136 S.Ct. 616');">136 S.Ct. 616 ; Ring v
Arizona, 536 U.S. 584');">536 U.S. 584 ), broad judicial discretion
to find aggravating factors (Cunningham v
California, 549 U.S. 270');">549 U.S. 270 ; Blakely v
Washington, 542 U.S. 296');">542 U.S. 296 ), the federal sentencing
guidelines (United States v Booker, 543 U.S. 220');">543 U.S. 220
), and mandatory minimum sentences (Alleyne,
133 S.Ct. 2151');">133 S.Ct. 2151');">133 S.Ct. 2151');">133 S.Ct. 2151).
successive decision of the Supreme Court has brought renewed
challenges to the constitutionality of New York's
persistent felony offender statute. From the first of those
challenges, we have held that the statute (Penal Law §
70.10  [a]), falls within the exception provided by
Almendarez-Torres, and thus outside the scope of the
Apprendi rule, because it exposes defendants to an
enhanced sentencing range based only on the existence of two
prior felony convictions (People v Giles, 24 N.Y.3d
1066 ; People v Battles, 16 N.Y.3d 54');">16 N.Y.3d 54 ;
People v Quinones, 12 N.Y.3d 116');">12 N.Y.3d 116 ; People
v Rivera, 5 N.Y.3d 61');">5 N.Y.3d 61 ; People v Rosen,
96 N.Y.2d 329');">96 N.Y.2d 329 ) . As we have consistently explained,
the existence of those prior convictions - each the result of
either a guilty plea or a jury verdict - is the "
sole determinant of whether a defendant is subject
to recidivist sentencing as a persistent felony
offender" (Rivera, 5 N.Y.3d at 66, citing
Rosen, 96 N.Y.2d at 335). Only after the existence
of those prior convictions is established and the maximum
permissible sentence raised does Supreme Court have "the
discretion to choose the appropriate sentence within a
sentencing range prescribed by statute "
(Quinones, 12 N.Y.3d at 129; see Penal Law
§ 70.10 ). 
court's opinion is, of course, subject to appellate
review, as is any exercise of discretion. The Appellate
Division, in its own discretion, may conclude that a
persistent felony offender sentence is too harsh or otherwise
improvident" and reduce it in the interest of justice to
a sentence within the statutory range fixed by the
legislature for the crime of conviction, without regard to
the persistent felony offender enhancement (Rivera, 5 N.Y.3d
at 68-69). "In this way, the Appellate Division can and
should mitigate inappropriately severe applications of the
other words, the statute mandates a two-part process: in step
one, the court adjudicates the defendant a persistent felony
offender if the necessary and sufficient fact of the two
prior convictions is proved beyond a reasonable doubt,
thereby exposing him to the sentencing range applicable to
such offenders; in step two, it evaluates what sentence is
warranted and sets forth an explanation of its opinion on
that question for the record (see Penal Law § 70.10 ;
Rivera, 5 N.Y.3d at 68).
Rivera and several of our cases following it include
dissents questioning the soundness of our construction of New
York's persistent felony offender statute
(Giles, 24 N.Y.3d at 1073-1076 [Abdus-Salaam, J.,
dissenting]; Battles, 16 N.Y.3d at 49-68 [Lippman,
Ch. J., dissenting in part]; Rivera, 5 N.Y.3d at
71-76 [Kaye, Ch. J., dissenting]; Rivera, 5 N.Y.3d
at 76-83 [Ciparick, J., dissenting]), that construction has
withstood both Sixth Amendment scrutiny and the test of time
. For the reasons elaborated in our
prior cases and the principle of stare decisis, our
construction withstands Mr. Prindle's suit as well.
addition to asking us to discard our well-settled
construction of the persistent felony offender statute
established in Rosen, Rivera,
Quinones, Battles, and Giles (a
decision that would require us to strike down the statute as
unconstitutional and hold the sentence at issue illegal), Mr.
Prindle argues that the Supreme Court's recent extension
of Apprendi to increases in the mandatory minimum of
a sentencing range requires us to declare that the statute,
even as construed in our prior caselaw, violates the Sixth
Amendment. His argument is unavailing because the persistent
felony offender statute never increases the mandatory minimum
sentence to which a persistent felony offender is exposed.
Instead, persistent felons are subject to the same mandatory
minimum as non-recidivist offenders guilty of the same crime.
Alleyne v United States, the Supreme Court applied
Apprendi and remanded for resentencing the case of a
defendant who was subjected to an increased, mandatory
minimum term of imprisonment based on a judicial finding that
he had brandished, rather than merely used or carried, a
firearm in relation to a crime of violence (Alleyne,
133 S.Ct. at 2155; 18 USC § 924 [c]  [A]). Overruling
Harris v U.S. (536 U.S. 545');">536 U.S. 545 ), which had
limited Apprendi to cases increasing the maximum
sentence, the Court held that "a fact that increases
either end of the ...