| Matter of Mingo v Annucci |
| 2008 NY Slip Op 02711 [49 AD3d 1106] |
| March 27, 2008 |
| Appellate Division, Third Department |
| In the Matter of Gregory Mingo, Appellant, v Anthony Annucci, asDeputy Commissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (David M. Finkelstein of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Stein, J.), entered May 30, 2007 in AlbanyCounty, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, toreview a determination of the Department of Correctional Services denying petitioner's requestfor a recalculation of his sentence.
In 1983, petitioner was sentenced to 25 years to life in prison on each of four counts ofmurder in the second degree, 12½ to 25 years for robbery in the first degree, 12½ to25 years for burglary in the first degree and 2½ to 7 years for criminal possession of aweapon in the second degree. Two of the sentences for the murder convictions were set to runconsecutively, with all other sentences running concurrently, for an aggregate prison term of 50years to life. After exhausting his administrative remedies, petitioner commenced this CPLRarticle 78 proceeding challenging his sentence, arguing that, since a person has only one life,consecutive life sentences can be served only concurrently and, as such, the minimum periodshould be recalculated to run concurrently as well. Supreme Court dismissed the petition,prompting this appeal.
Contrary to petitioner's contentions, there is no provision of the Penal Law that prohibits theimposition of consecutive life sentences (see e.g. Matter of Roballo v Smith, 63 NY2d485 [1984]). The Department of Correctional Services properly calculated petitioner's sentencepursuant to Penal Law former § 70.30, as it read at the time of petitioner's sentencing.Pursuant to that [*2]provision, when sentences are set to runconsecutively, the minimum periods are added to arrive at the aggregateminimum—which, here, is 50 years—and the maximum periods are added to arriveat the aggregate maximum—which, here, is life (see Penal Law former §70.30 [1] [b]).[FN*]
Petitioner's remaining contentions regarding the constitutionality of the statute were notraised in the petition and, thus, have not been preserved for this Court's review (see Matter ofKilleen v Travis, 291 AD2d 600, 601 [2002]; Matter of White v Goord, 278 AD2d694, 694 [2000]).
Cardona, P.J., Peters, Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: Petitioner concedes that thesentence limitations enumerated in Penal Law former § 70.30 (1) (c) and (d) areinapplicable to him.