| Matter of King v Fischer |
| 2009 NY Slip Op 04142 [62 AD3d 1221] |
| May 28, 2009 |
| Appellate Division, Third Department |
| In the Matter of Thomas King, Appellant, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Sackett, J.), entered September 2, 2008 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Department of Correctional Services calculating thelength of petitioner's term of imprisonment.
In January 1985, petitioner was sentenced to two terms of 10 years to life, to runconcurrently, for his convictions of two counts of robbery in the first degree. In April 1997, uponhis convictions of robbery in the first degree and attempted robbery in the first degree, he wassentenced as a persistent violent felony offender to, among other terms, two terms of 25 years tolife, to run consecutively. The sentencing court in 1997 was silent as to whether the newsentences should run consecutively or concurrently to his previously imposed sentences. TheDepartment of Correctional Services, relying upon Penal Law § 70.25 (2-a), calculatedpetitioner's 1997 sentences as running consecutively to those of his 1985 sentences. Petitionercommenced this proceeding challenging that computation. Supreme Court dismissed petitioner'sapplication, prompting this appeal.
As the Court of Appeals recently pronounced in People ex rel. Gill v Greene (12 NY3d 1 [2009]), the language ofPenal Law § 70.25 (2-a) should be read to mean that "any sentence imposed by the courtshall run consecutively to the undischarged sentence, whether the sentencing court says so ornot" (id. at 6). As such, the 1997 sentencing court committed no error [*2]and the Department of Correctional Services properly calculatedpetitioner's 1997 sentences to run consecutively to his undischarged 1985 sentences (id.at 7).
Mercure, J.P., Rose, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the judgmentis affirmed, without costs.