| Matter of Soto v Fischer |
| 2009 NY Slip Op 02614 [60 AD3d 1074] |
| March 31, 2009 |
| Appellate Division, Second Department |
| In the Matter of Anselmo Soto, Jr., Appellant, v BrianFischer, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Benjamin N. Gutman and Laura R.Johnson of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the New YorkState Department of Correctional Services dated June 25, 2007, which, in effect, calculated thesentence of imprisonment that was imposed upon the petitioner on December 4, 1987, as runningconsecutively to certain sentences previously imposed, the petitioner appeals from a judgment ofthe Supreme Court, Dutchess County (Pagones, J.), dated November 28, 2007, which, in effect,denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, without costs or disbursements.
In 1987 the petitioner was sentenced, as a persistent felony offender, to an indeterminateprison term of 25 years to life, upon his conviction of conspiracy in the second degree. Thesentencing minutes and the order of commitment were silent as to whether the sentence was torun concurrently with or consecutively to sentences previously imposed upon the petitioner in1981 and 1984. The New York State Department of Correctional Services (hereinafter theDOCS) subsequently determined that the petitioner's 1987 sentence was to run consecutively tohis 1981 and 1984 sentences, and the petitioner commenced this CPLR article 78 proceeding,seeking to annul that determination.
Contrary to the petitioner's contention, the DOCS did not exceed its authority in determiningthat his sentences must run consecutively, pursuant to the mandatory provisions of PenalLaw[*2]§ 70.25 (2-a) (see People ex rel. Gill vGreene, 12 NY3d 1 [2009]). Accordingly, the Supreme Court properly, in effect, denied thepetition and dismissed the proceeding. Prudenti, P.J., Dillon, Covello and Leventhal, JJ., concur.