| People ex rel. Styles v Rabsatt |
| 2009 NY Slip Op 04799 [63 AD3d 1365] |
| June 11, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Andrew Styles,Respondent, v Calvin O. Rabsatt, as Superintendent of Riverview Correctional Facility,Appellant. |
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Garry, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered October 2,2008 in St. Lawrence County, which granted petitioner's application, in a proceeding pursuant toCPLR article 70, and discharged petitioner.
In 1977, petitioner was sentenced as a second felony offender to an aggregate prison term of15 to 30 years following his convictions of robbery in the first degree and robbery in the seconddegree. Following his release on parole, petitioner committed another crime and, in 1987, wasconvicted of robbery in the second degree and sentenced as a second violent felony offender to7½ to 15 years in prison. Both the commitment order and the sentencing minutes weresilent as to the manner in which the 1987 sentence was to run relative to the undischargedportion of petitioner's 1977 sentences.
The Department of Correctional Services thereafter calculated petitioner's 1987 sentence asrunning consecutively to the undischarged portion of his 1977 sentences, prompting petitioner tocommence this proceeding pursuant to CPLR article 70 to challenge that computation and thelegality of his continued incarceration. Supreme Court granted petitioner's application andordered that he be released. This appeal by respondent ensued.
There is no dispute that petitioner was sentenced in 1987 as a second violent felony [*2]offender and, therefore, was subject to the consecutive sentencingprovisions of Penal Law § 70.25 (2-a). Where, as here, the sentencing court is required toimpose a consecutive sentence pursuant to such statute, "it is deemed to have imposed theconsecutive sentence the law requires" (People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009])—even inthe absence of an express judicial directive to that effect (see id. at 6). We thereforediscern no error in the computation of petitioner's sentence (see People ex rel. Taylor v Brown, 62 AD3d 1063, 1064 [2009];Matter of McMoore v Fischer, 61AD3d 1187, 1188 [2009]). Accordingly, Supreme Court's judgment is reversed and thepetition is dismissed.
Cardona, P.J., Rose, Kane and McCarthy, JJ., concur. Ordered that the judgment is reversed,on the law, without costs, and petition dismissed.