| Matter of Dalton v James |
| 2009 NY Slip Op 07177 [66 AD3d 1095] |
| October 8, 2009 |
| Appellate Division, Third Department |
| In the Matter of Michael Dalton, Respondent, v Randy James, asSuperintendent of Camp Georgetown Correctional Facility, et al.,Appellants. |
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Appeal from a judgment of the Supreme Court (Garry, J.), entered December 2, 2008 inMadison County, which granted petitioner's application, in a proceeding pursuant to CPLRarticle 78, to annul a determination of respondent Department of Correctional Servicescalculating petitioner's prison sentence.
In July 2005, petitioner was sentenced as a second felony offender to a prison term of 2 to 4years upon his conviction of criminal sale of a controlled substance in the fifth degree. Both thesentence and commitment order and the sentencing minutes failed to address the manner inwhich this sentence was to run relative to petitioner's prior undischarged prison terms.Respondent Department of Correctional Services thereafter calculated petitioner's 2005 sentenceas running consecutively to his prior undischarged prison terms, prompting petitioner tocommence a habeas corpus proceeding to challenge that computation and the legality of hiscontinued incarceration. Supreme Court converted the matter to this CPLR article 78 proceeding,annulled the sentencing calculation and ordered that petitioner be resentenced. This appeal byrespondents followed.
There is no dispute that petitioner was sentenced in 2005 as a second felony offender and,therefore, was subject to the consecutive sentencing provisions of Penal Law § 70.25(2-a). Where, as here, a statute requires the imposition of a consecutive sentence, the sentencingcourt [*2]is deemed to have imposed the consecutive sentence thelaw requires—even in the absence of a judicial directive to that effect (see People ex rel. Gill v Greene, 12NY3d 1, 4 [2009]; People ex rel.Nadal v Rivera, 63 AD3d 1434 [2009]; People ex rel. Lopez v Yelich, 63 AD3d 1433 [2009]; People ex rel. Driscoll v LaClair, 63AD3d 1364 [2009]). Accordingly, we discern no error in the computation of petitioner'ssentence (see Matter of Grey vFischer, 63 AD3d 1431 [2009]; People ex rel. Taylor v Brown, 62 AD3d 1063, 1064 [2009]).Supreme Court's judgment is, therefore, reversed and the petition is dismissed.
Cardona, P.J., Peters, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgmentis reversed, on the law, without costs, and petition dismissed.