| People ex rel. Gill v Greene |
| 2008 NY Slip Op 01668 [48 AD3d 1003] |
| February 28, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Anthony Gill,Appellant, v Gary Greene, as Superintendent of Great Meadow Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel of counsel), forrespondent.
Kane, J. Appeal from a judgment of the Supreme Court (Berke, J.), entered December 28,2006 in Washington County, which denied petitioner's application for a writ of habeas corpus, ina proceeding pursuant to CPLR article 70, without a hearing.
Petitioner was sentenced as a second felony offender but the sentencing court was silent as towhether his sentences should run consecutively or concurrently to his previously imposedsentences. The Department of Correctional Services (hereinafter DOCS), relying upon Penal Law§ 70.25 (2-a), calculated the sentences as running consecutively. Petitioner commencedthis proceeding challenging the legality of his incarceration. Supreme Court denied petitioner'sapplication for a writ of habeas corpus, prompting this appeal.
Initially, because petitioner was conditionally released on parole, habeas corpus relief is nolonger available to him (see People exrel. Schoenwandt v Travis, 23 AD3d 806, 806 [2005]; People ex rel. Morales vCampbell, 298 AD2d 740, 741 [2002]). Rather than dismiss the proceeding as moot,however, we accede to petitioner's request to convert this CPLR article 70 proceeding to a CPLRarticle 78 proceeding (see CPLR 103 [c]).[*2]
Petitioner concedes that Penal Law § 70.25 (2-a)required that the sentencing court, when imposing sentence upon him as a second felonyoffender, impose the sentences consecutively to his undischarged sentences. But the sentencingcourt did not do so. Based upon the court's silence regarding the issue, petitioner contends thatPenal Law § 70.25 (1) mandates that his sentences shall run concurrently. Thus, petitionercontends that although the court was required by law to impose consecutive sentences, DOCScould not correct the court's error. Indeed, the Legislature did not authorize DOCS to runsentences consecutively if the court did not so order. The Legislature has shown that whileDOCS has a role in correcting an unlawful sentence, a court is the only body authorized toimpose a correct sentence (see Matter ofDreher v Goord, 46 AD3d 1261, 1262 [2007]; compare Correction Law §601-a [requiring wardens to contact the prosecuting district attorney when it appears that a personwas erroneously sentenced, with the prosecutor to then arrange for the person to be taken beforethe sentencing court for purposes of resentencing]). "The only cognizable sentence is the oneimposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequentproceeding, is of no effect" (Earley v Murray, 451 F3d 71, 75 [2d Cir 2006], certdenied 551 US —, 127 S Ct 3014 [2007]; see People v Duncan, 42 AD3d 470, 471 [2007], lv denied9 NY3d 961 [2007]). We therefore agree with petitioner that DOCS had no authority to calculatehis sentences consecutively where the court did not do so (see Matter of Dreher vGoord, supra; but see Matterof Moore v Goord, 34 AD3d 909, 910 [2006]).
Instead of usurping the power of the courts, upon discovering an illegal sentence DOCSshould inform the prosecuting attorney or the sentencing court and allow the sentence to becorrected judicially (see Correction Law § 601-a; CPL 440.40 [1] [permittingprosecutors to move for resentencing]; People v Richardson, 100 NY2d 847, 852-853[2003] [implying that courts have inherent power to sua sponte vacate an illegal sentence andresentence a defendant]; see also People v Wright, 56 NY2d 613, 615 [1982]), rather thanadministratively.
Cardona, P.J., Mercure, Spain and Rose, JJ., concur. Ordered that the judgment is reversed,on the law, without costs, petition converted to a CPLR article 78 proceeding and petitiongranted to the extent of annulling the determination by the Department of Correctional Servicesthat petitioner's sentences run consecutively.