People ex rel. Hunter v Yelich

2009 NY Slip Op 05065 [63 AD3d 1424]

June 18, 2009

Appellate Division, Third Department

As corrected through Wednesday, August 5, 2009

The People of the State of New York ex rel. Eddie Hunter,Respondent, v Bruce Yelich, as Superintendent of Bare Hill 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 January28, 2009 in Franklin County, which granted petitioner's application, in a proceeding pursuant toCPLR article 70, and discharged petitioner.

In 1986, petitioner was convicted of two counts of robbery in the second degree andsentenced to an aggregate term of 7 to 21 years in prison. Petitioner was convicted of robbery inthe second degree and robbery in the third degree in 1987 and sentenced to a prison term of21/3 to 7 years, said sentence to run concurrently with the 1986 sentence(hereinafter collectively referred to as the 1986 sentences). Following his release on parole,petitioner committed another crime and, in 1997, was sentenced as a second felony offender to aprison term of 3 to 6 years for his conviction of robbery in the third degree. The 1997 sentencingminutes made no mention of whether such sentence was to run consecutively to or concurrentlywith the 1986 sentences previous imposed. Petitioner again was released to parole and againcommitted another crime, as a result of which he was sentenced in 2001 as a second felonyoffender to a prison term of 1½ to 3 years upon his conviction of grand larceny in thefourth degree. The 2001 sentencing minutes also were silent as to the manner in which suchsentence was to run relative to petitioner's prior undischarged terms.

The Department of Correctional Services calculated petitioner's 1997 sentence as [*2]running consecutively to the undischarged portion of his 1986sentences and his 2001 sentence as consecutive to all prior undischarged terms (seePenal Law § 70.25 [2-a]), prompting petitioner to commence this proceeding pursuant toCPLR article 70 to challenge that computation and the legality of his continued incarceration.Supreme Court granted petitioner's application and ordered that he be released, and respondent'ssubsequent motion for a stay pending appeal was granted by this Court.

There is no dispute that petitioner was sentenced in 1997 and 2001 as a second felonyoffender and, therefore, was subject to the provisions of Penal Law § 70.25 (2-a). To thatend, the Court of Appeals has held that where, as here, the sentencing court is required to imposea consecutive sentence pursuant to Penal Law § 70.25 (2-a), "it is deemed to have imposedthe consecutive sentence the law requires" (People ex rel. Gill v Greene, 12 NY3d 1, 4[2009])—regardless of whether it actually specifies that such sentence is consecutive(id. at 6). Under these circumstances, we discern no error in the computation ofpetitioner's sentence (see Matter ofMcMoore v Fischer, 61 AD3d 1187, 1188 [2009]; Matter of Soto v Fischer, 60 AD3d 1074 [2009]). Accordingly,Supreme Court's judgment is reversed and the petition is dismissed.

Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the judgment is reversed, onthe law, without costs, and petition dismissed.