| Matter of Grey v Fischer |
| 2009 NY Slip Op 05068 [63 AD3d 1431] |
| June 18, 2009 |
| Appellate Division, Third Department |
| In the Matter of Rodolfo Grey, Respondent, v Brian Fischer, asCommissioner of Correctional Services, et al., Appellants. |
—[*1]
Stein, J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered July 3, 2008 inAlbany County, which granted petitioner's application, in a proceeding pursuant to CPLR article78, to annul a determination of the Department of Correctional Services calculating petitioner'ssentences as running consecutively.
In 1987, petitioner was sentenced to 1½ to 4½ years in prison upon hisconviction of attempted robbery in the first degree. Petitioner was paroled, committed additionalcrimes and, in 1989, was sentenced for those crimes as a second violent felony offender tovarious prison terms, resulting in an aggregate prison term of 15 to 30 years. The 1989sentencing minutes were silent as to the manner in which such sentences were to run relative tothe undischarged portion of petitioner's 1987 sentence.[FN1]
The Department of Correctional Services (hereinafter DOCS), relying upon Penal Law§ 70.25 (2-a), calculated petitioner's sentences as running consecutively, promptingpetitioner to commence this CPLR article 78 proceeding to annul that determination. SupremeCourt granted [*2]petitioner's application and annulled DOCS'sconsecutive sentencing determination, prompting this appeal.[FN2]
Subsequent to Supreme Court's determination, the Court of Appeals ruled that where, ashere, the sentencing court is required to impose a consecutive sentence (see Penal Law§ 70.25 [2-a]), "it is deemed to have imposed the consecutive sentence the law requires"(People ex rel. Gill v Greene, 12NY3d 1, 4 [2009])—even in the absence of an express judicial directive to that effect(see id. at 6). Inasmuch as there is no dispute that petitioner was subject to theconsecutive sentencing provisions of Penal Law § 70.25 (2-a), we perceive no error inDOCS's computation of his 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.
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition dismissed.
Footnote 1: Petitioner also was sentenced in1990 to a prison term of 1½ to 3 years for promoting prison contraband in the first degree.Because this sentence runs concurrently with the sentences previously imposed, it does not affectthe calculations relevant to petitioner's overall sentence or release dates.
Footnote 2: Respondents' subsequentmotion to renew was granted, but Supreme Court adhered to its original decision. Althoughrespondents did not appeal from the subsequent judgment, we nonetheless may consider it(see CPLR 5517; Matter ofCollins, 36 AD3d 1191, 1192 n [2007]).