In People v. Quinones (12 NY3d 116, 906 NE2d 1033, 879 NYS2d 1 [2009]), the Court yet again analyzed the constitutionality of Penal Law 70.10, this time in light of the Supreme Court's decision in Cunningham v. California (549 US 270, 127 S Ct 856, 166 L Ed 2d 856 [2007]). The Court in Quinones stated that: "Unlike the sentencing schemes in Apprendi, Ring, Blakely, Booker, and Cunningham, all of which effectively provided for judicial fact-finding of an element(s) of an offense as a prerequisite to enhancing a sentence beyond the relevant sentencing range, the New York sentencing scheme, after a defendant is deemed eligible to be sentenced as a persistent felony offender, requires that the sentencing court make a qualitative judgment about, among other things, the defendant's criminal history and the circumstances surrounding a particular offense in order to determine whether an enhanced sentence, under the statutorily prescribed sentencing range, is warranted. Stated differently, New York's sentencing scheme, by requiring that sentencing courts consider defendant's 'history and character' and the 'nature and circumstances' of defendant's conduct in deciding where, within a range, to impose an enhanced sentence, sets the parameters for the performance of one of the sentencing court's most traditional and basic functions, i.e., the exercise of sentencing discretion." (12 NY3d at 130.) The Court of Appeals explained "the statutory language requiring the sentencing court to consider the specified factors and to articulate the reason for the chosen sentence grants defendants a right to an airing and an explanation, not a result." In Quinones, the Court of Appeals observed that: "New York's sentencing scheme, in contrast, is a recidivist sentencing scheme. That is, under New York's scheme, a defendant is subject to an enhanced sentence based solely on the existence of two prior felony convictions. This fact alone places the New York scheme outside the scope of the Apprendi rule. Another distinguishing feature of New York's sentencing scheme is that it is only after a defendant's eligibility for an enhanced sentence is determined that a judge is given the discretion to choose the appropriate sentence within a sentencing range prescribed by statute" (12 NY3d at 128-129). The Quinones Court acknowledged that such a sentencing scheme, which allows for such discretion, is permissible under the Sixth Amendment (see id. at 129.)