People ex rel. Taylor v Brown

2009 NY Slip Op 03653 [62 AD3d 1063]

May 7, 2009

Appellate Division, Third Department

As corrected through Wednesday, July 1, 2009

The People of the State of New York ex rel. Robert Taylor,Appellant, v William Brown, as Superintendent of Eastern Correctional Facility, et al.,Respondents.

—[*1]Robert Taylor, Napanoch, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondents.

Appeal from an order of the Supreme Court (Zwack, J.), entered July 22, 2008 in UlsterCounty, which denied petitioner's application for a writ of habeas corpus, in a proceedingpursuant to CPLR article 70, without a hearing.

In 1988, petitioner was sentenced to 81/3 to 25 years in prison formanslaughter in the first degree. He was paroled in February 1998. In March 2003, petitionerwas sentenced as a second violent felony offender to several concurrent sentences, the longest ofwhich was a 15-year term for criminal possession of a weapon in the second degree, but thesentencing court was silent as to whether the new sentences should run consecutively orconcurrently to his previously imposed sentences. The Department of Correctional Services(hereinafter DOCS), relying upon Penal Law § 70.25 (2-a), calculated the sentences asrunning consecutively. Petitioner commenced this proceeding challenging the computation byDOCS of his sentence. Supreme Court denied petitioner's application for a writ of habeas corpus,prompting this appeal.

The Court of Appeals recently answered this question directly, holding that, where asentencing court imposes a sentence pursuant to Penal Law § 70.25 (2-a), "any sentenceimposed by the court shall run consecutively to the undischarged sentence, whether thesentencing court [*2]says so or not" (People ex rel. Gill v Greene, 12 NY3d1, 6 [2009]). Thus, the sentencing court committed no error and "DOCS properly interpreted[petitioner's 2003] sentence as being consecutive to his previous undischarged sentence[ ], asPenal Law § 70.25 (2-a) requires" (id. at 7).

We have examined petitioner's remaining arguments and find them to be without merit.

Cardona, P.J., Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the order isaffirmed, without costs.