People ex rel. Driscoll v LaClair

2009 NY Slip Op 04798 [63 AD3d 1364]

June 11, 2009

Appellate Division, Third Department

As corrected through Wednesday, August 5, 2009

The People of the State of New York ex rel. Rashad Driscoll,Respondent, v D. LaClair, as Superintendent of Franklin Correctional Facility,Appellant.

—[*1]Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forappellant.

Lahtinen, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered January23, 2009 in Franklin County, which granted petitioner's application, in a proceeding pursuant toCPLR article 70, and discharged petitioner.

In 1994, petitioner was convicted of criminal possession of a controlled substance in thethird degree and sentenced to 11/3 to 4 years in prison. Following his release onparole, petitioner was convicted of criminal sale of a controlled substance in the third degreeand, in 1996, was sentenced to a prison term of 4½ to 9 years. Petitioner again was releasedto parole supervision and, in 2006, he was convicted of criminal possession of a controlledsubstance in the third degree and sentenced as a second felony offender to 3½ years inprison followed by three years of postrelease supervision. The sentencing court was silent as towhether petitioner's 2006 sentence would run consecutively to or concurrently with his prior,undischarged sentences.

The Department of Correctional Services, relying upon Penal Law § 70.25 (2-a),calculated petitioner's sentences as running consecutively. Petitioner thereafter commenced thisproceeding pursuant to CPLR article 70 challenging the computation of his sentence and thelegality of his incarceration. Supreme Court granted petitioner's application and ordered himreleased to postrelease supervision. This appeal by respondent ensued.[*2]

Where, as here, the sentencing court is required toimpose a consecutive sentence (see Penal Law § 70.25 [2-a]), "it is deemed tohave imposed the consecutive sentence the law requires" (People ex rel. Gill v Greene, 12 NY3d 1, 4[2009])—notwithstanding its failure to specify that the subject sentence indeed isconsecutive. As the Court of Appeals has noted, "[n]othing in the statute and nothing in theConstitution requires the sentencing court to say the word 'consecutive,' either orally or inwriting" (id. at 6). Inasmuch as petitioner was subject to the sentencing provisions ofPenal Law § 70.25 (2-a), we perceive no error in the computation of his sentence (see Matter of McMoore v Fischer, 61AD3d 1187, 1188 [2009]). Accordingly, Supreme Court's judgment is reversed and thepetition is dismissed.

Peters, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition dismissed.