| People ex rel. Gathers v Artus |
| 2009 NY Slip Op 05071 [63 AD3d 1435] |
| June 18, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Willie Gathers,Respondent, v Dale Artus, as Superintendent of Clinton Correctional Facility,Appellant. |
—[*1] Sandra M. Colatosti, Albany, for respondent.
Rose, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered January 29,2009 in Clinton County, which granted petitioner's application, in a proceeding pursuant toCPLR article 70, and discharged petitioner.
In 1981 and 1987, petitioner was convicted of various crimes and indeterminate sentences ofimprisonment were imposed. Following his release on parole, petitioner was convicted ofattempted arson in the third degree and sentenced as a second felony offender to a prison term of3½ to 7 years. Neither the commitment order nor the sentencing minutes made any mentionas to the manner in which petitioner's sentence was to run relative to his prior undischargedterms.
The Department of Correctional Services thereafter calculated petitioner's sentences asrunning consecutively (see Penal Law § 70.25 [2-a]), prompting petitioner tocommence this proceeding pursuant to CPLR article 70 to challenge those calculations and thelegality of his continued incarceration. Supreme Court granted petitioner's application andordered that he be released from [*2]custody. This appeal byrespondent ensued.
There is no dispute that petitioner is subject to the consecutive sentencing provisions ofPenal Law § 70.25 (2-a), and "when a court is required by statute to impose a sentence thatis consecutive to another, and the court does not say whether its sentence is consecutive orconcurrent, it is deemed to have imposed the consecutive sentence the law requires" (People ex rel. Gill v Greene, 12 NY3d1, 4 [2009]). We therefore discern no error in the computation of petitioner's 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.
Mercure, J.P., Kane, Kavanagh and Garry, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition dismissed.