| People ex rel. Lopez v Yelich |
| 2009 NY Slip Op 05069 [63 AD3d 1433] |
| June 18, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Antonio Lopez,Respondent, v Bruce Yelich, as Superintendent of Bare Hill Correctional Facility,Appellant. |
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Garry, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered December26, 2008 in Franklin County, which granted petitioner's application, in a proceeding pursuant toCPLR article 70, and discharged petitioner.
In 1994, petitioner was convicted of robbery in the first degree and sentenced as a secondfelony offender to a prison term of 4 to 8 years. Following his parole, petitioner was convicted in1998 of two counts of attempted criminal sale of a controlled substance in the third degree andsentenced as a second felony offender to concurrent prison terms of 4 to 8 years. Neither thecommitment order nor the sentencing minutes made any mention as to whether this sentence wasto run concurrently with or consecutively to the undischarged portion of petitioner's 1994sentence. Thereafter, in 1999, petitioner was convicted of promoting prison contraband in thefirst degree and sentenced as a second felony offender to a prison term of 1½ to 3 years.Although the commitment order indicated that such sentence was to run consecutively to the"sentence currently serving," which presumably was in reference to petitioner's 1998 conviction,both the commitment order and the sentencing minutes were silent as to the manner in whichsuch sentence was to run relative to the undischarged portions of the remaining terms previouslyimposed.
The Department of Correctional Services, relying upon Penal Law § 70.25 (2-a), [*2]calculated petitioner's 1998 sentence as running consecutively tohis 1994 term and his 1999 sentence as running consecutively to all prior terms. Petitionerthereafter commenced this proceeding pursuant to CPLR article 70 to challenge thosecomputations and the legality of his continued incarceration. Supreme Court granted petitioner'sapplication and ordered that he be released from custody. This appeal by respondent ensued.
The record reflects that petitioner was sentenced as a second felony offender in 1994, 1998and 1999, thus subjecting him to the consecutive sentencing provisions of Penal Law §70.25 (2-a). Where, as here, the sentencing court is required to impose a consecutive sentencepursuant to the statute, "it is deemed to have imposed the consecutive sentence the law requires"(People ex rel. Gill v Greene, 12NY3d 1, 4 [2009])—even if it fails to so specify (see id. at 6). Notably,"[n]othing in the statute and nothing in the Constitution requires the sentencing court to say theword 'consecutive,' either orally or in writing" (id.). We therefore discern no error in thecomputation 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.
Mercure, J.P., Rose, Kane and Kavanagh, JJ., concur. Ordered that the judgment is reversed,on the law, without costs, and petition dismissed.