The court properly denied defendant's request for a circumstantial evidence charge because the evidence that defendant committed the robbery was both circumstantial and direct ( see People v. Roldan, 88 N.Y.2d 826). In any event, were we to find any error, we would find it to be harmless in view of the overwhelming evidence of defendant's guilt ( see People v. Brian, 84 N.Y.2d 887, 889).
The court properly denied defendant's motion to set aside his sentence as a discretionary persistent felony offender, made on the ground that the procedure under which it was imposed involved unconstitutional fact-finding by the sentencing court in violation of Apprendi v. New Jersey ( 530 U.S. 466). We need not decide whether People v. Rosen ( 96 N.Y.2d 329, cert denied 534 U.S. 899), to the extent that it upholds the constitutionality of the discretionary persistent felony offender procedure, conflicts with Ring v. Arizona ( 536 U.S. 584), because the particular facts upon which the sentencing court based its determination were all permissible under Apprendi, in that they constituted facts found by the jury in the instant case, prior convictions and undisputed matters of record.
The arguments contained in defendant's pro se supplemental brief are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.