OPINION OF THE COURT
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) argument for the first time on a 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, 5 NY3d 61).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order affirmed in a memorandum.