People v. Cortes ( 2021 )

People v Cortes (2021 NY Slip Op 02613)

People v Cortes

2021 NY Slip Op 02613

Decided on April 29, 2021

Appellate Division, First Department

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.

Decided and Entered: April 29, 2021
Before: Kapnick, J.P., Moulton, Scarpulla, Mendez, JJ.

Ind No. 231/14 231/14 Appeal No. 13704 Case No. 2019-4539

[*1]The People of the State of New York, Respondent,

v

Miguel Cortes, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Brittany N. Francis of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.

Order, Supreme Court, New York County (James M. Burke, J.), entered on or about August 29, 2018, which denied defendant's CPL 440.20 motion to set aside his sentence as a persistent violent felony offender, unanimously affirmed.

Defendant's constitutional challenges to his sentence as a persistent violent felony offender, based on his commission of three burglaries of dwellings (see Penal Law § 140.25[2]), without the use of any violence, are unavailing (People v Corey, 190 AD3d 620, 621 [1st Dept 2021]). The legislature's selection of felonies to which persistent

violent felony offender sentencing applies, and its exclusion of other felonies, has a rational basis (see Chapman v United States, 500 US 453, 464-465 [1991]; People v Walker, 81 NY2d 661, 668 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 29, 2021