| People ex rel. Nadal v Rivera |
| 2009 NY Slip Op 05070 [63 AD3d 1434] |
| June 18, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Abdul Nadal,Respondent, v Francisco Rivera, as Superintendent of Wallkill Correctional Facility, et al.,Appellants. |
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Cardona, P.J. Appeal from a judgment of the Supreme Court (Zwack, J.), entered October10, 2008 in Ulster County, which granted petitioner's application, in a proceeding pursuant toCPLR article 70, and discharged petitioner.
In 1999, petitioner was convicted of criminal sale of a controlled substance in the thirddegree and sentenced as a second felony offender to a prison term of 4½ to 9 years.Following his release on parole, petitioner was convicted of arson in the fourth degree in 2005and sentenced as a second felony offender to 1½ to 3 years in prison. Neither thesentencing minutes nor the commitment order specified whether petitioner's 2005 sentence wasto run consecutively to or concurrently with the undischarged portion of his 1999 sentence.
Respondent Department of Correctional Services (hereinafter DOCS), relying upon PenalLaw § 70.25 (2-a), calculated petitioner's sentences as running consecutively. Petitionerthereafter commenced this proceeding pursuant to CPLR article 70 challenging DOCS'scomputations and the [*2]legality of his continued incarceration.Supreme Court granted petitioner's application and ordered his release from custody. This appealby respondents ensued.
Where, as here, the sentencing court is required to impose a consecutive sentence(see Penal Law § 70.25 [2-a]), "it is deemed to have imposed the consecutivesentence the law requires" (People exrel. Gill v Greene, 12 NY3d 1, 4 [2009])—even in the absence of an expressjudicial directive to that effect (see id. at 6). As the Court of Appeals has noted,"[n]othing in the statute and nothing in the Constitution requires the sentencing court to say theword 'consecutive,' either orally or in writing" (id.). Inasmuch as there is no dispute thatpetitioner was subject to the consecutive sentencing provisions of Penal Law § 70.25(2-a), we perceive no error in DOCS's computation of his sentence (see People ex rel. Taylor v Brown, 62AD3d 1063, 1064 [2009]; Matterof McMoore v Fischer, 61 AD3d 1187, 1188 [2009]). Accordingly, Supreme Court'sjudgment is reversed and the petition is dismissed.
Rose, Kane, McCarthy and Garry, JJ., concur. Ordered that the judgment is reversed, on thelaw, without costs, and petition dismissed.