People v. Rodriguez-Ortiz

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered February 18, 2004, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

Defendant’s waiver of his right to áppeal encompasses his present constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender (see People v Callahan, 80 NY2d 273 , 281 [1992]; People v Figueroa, 13 AD3d 163 [2004], lv denied 4 NY3d 798 [2005]). Were we to find that this issue was not waived, we would find it to be unpreserved and, in any event, without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant’s mandatory sentence was based entirely on his prior convictions (see Almendarez-Torres v United States, 523 US 224 [1998]). Concur—Marlow, J.P., Nardelli, Williams, Sweeny and McGuire, JJ.