People v. Rivera

Chief Judge Kaye

(dissenting). I begin by stating two points of agreement with the majority.

First, I agree that People v Rosen (96 NY2d 329 [2001]) was correct at the time it was decided. The defendant in Rosen brought his challenge on the basis of Apprendi v New Jersey (530 US 466, 490 [2000]), in which the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Since it was the fact of two prior convictions “that initially…