| Matter of McMoore v Fischer |
| 2009 NY Slip Op 02865 [61 AD3d 1187] |
| April 16, 2009 |
| Appellate Division, Third Department |
| In the Matter of James McMoore, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Stein, J.), entered December 11, 2007 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Department of Correctional Services calculatingpetitioner's sentence.
In May 1984, petitioner was sentenced as a second felony offender to 2½ to 5 years inprison for attempted robbery in the second degree. He was thereafter released to parolesupervision and, in March 1987, was sentenced to a prison term of 2½ to 5 years forcriminal possession of a weapon in the third degree. The sentencing court was silent as towhether that sentence would run consecutively or concurrently to petitioner's previously imposedsentence. Petitioner was subsequently paroled and, in March 1991, was sentenced as a persistentviolent felony offender to two terms of imprisonment of 20 years to life for manslaughter in thefirst degree and criminal possession of a weapon in the third degree. Again, there was noindication by the sentencing court as to whether those sentences would run consecutively orconcurrently to petitioner's prior undischarged sentences.
The Department of Correctional Services, relying on Penal Law § 70.25 (2-a),calculated petitioner's sentences as running consecutively. As a result, petitioner commenced thisproceeding challenging the legality of his incarceration. Supreme Court dismissed the petitionand this appeal ensued.[*2]
We affirm. In accordance with Penal Law § 70.25(2-a), the sentences imposed in 1987 and 1991 were required to run consecutively to petitioner'sprior undischarged sentences whether the sentencing courts expressly indicated as much or not(see People ex rel. Gill v Greene,12 NY3d 1 [2009]). Thus, as the Department of Correctional Services committed no error incalculating petitioner's sentences as running consecutively (see id.), Supreme Courtproperly dismissed this proceeding.
Peters, J.P., Rose, Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.