People v. Melendez , 723 N.Y.S.2d 667 ( 2001 )

—Judgment, Supreme Court, New York County (William Wetzel, J.), rendered January 26, 1998, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.

Defendant’s suppression motion was properly denied. The photograph of the lineup reveals that the fillers were sufficiently similar to defendant and that there was no substantial likelihood that defendant would be singled out (see, People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833).

The procedure under which defendant was sentenced as a persistent violent felony offender was not unconstitutional (People v Rosen, 96 NY2d 329; Almendarez-Torres v United States, 523 US 224; compare, Apprendi v New Jersey, 530 US 466). Concur — Rosenberger, J. P., Mazzarelli, Andrias, Ellerin and Lerner, JJ.