23 A.D.3d 204
N.Y. App. Div.
2005

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v EDGARDO RODRIGUEZ-ORTIZ, Appellant.

Supreme Court, Appellate Division, First Department, New York

802 N.Y.S.2d 622

Harold Silverman, J.

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 appeal 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.