Oliver Giola West, Jr. vs. The People, No. 145 SSM 12 (N.Y. 2005)

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This memorandum is uncorrected and subject to revision before publication in the New York Reports.

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1 No. 145 SSM 12

The People &c., Respondent, v. Oliver Giola West, Jr., Appellant.

Submitted by Jan Hoth, for appellant.

Submitted by Morrie I. Kleinbart, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed.

We need not decide whether defendant could raise his Apprendi v New Jersey (530 US 466 [2000]) argument for the first time on a - 2 - SSM No. 12 motion to set aside his sentence pursuant to CPL 440.20 in view of the Court's holding that New York's persistent felony offender statute is constitutional (see People v Rivera, __ NY3d __ [decided June 9, 2005]).

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On review of submissions pursuant to section 500.4 of the Rules, order affirmed, in a memorandum. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Decided June 14, 2005

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