| Matter of Livingston v James |
| 2009 NY Slip Op 07178 [66 AD3d 1096] |
| October 8, 2009 |
| Appellate Division, Third Department |
| In the Matter of Kevin Livingston, Respondent, v RandyJames, as Superintendent of Camp Georgetown Correctional Facility, et al.,Appellants. |
—[*1] Kevin Livingston, Georgetown, respondent pro se.
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 2004, petitioner was convicted of criminal possession of a controlled substance in thefourth degree and was sentenced as a second felony offender to a prison term of 3 to 6 years. Thesentence and commitment order failed to specify whether this sentence was to run consecutivelyto or concurrently with petitioner's prior undischarged prison term. Respondent Department ofCorrectional Services (hereinafter DOCS) calculated petitioner's 2004 sentence as runningconsecutively to petitioner's prior undischarged term, prompting petitioner to commence ahabeas corpus proceeding to challenge that computation and the legality of his continuedincarceration. Supreme Court converted the matter to this CPLR article 78 proceeding, annulledDOCS's sentencing computation and directed that petitioner be resentenced. This appeal byrespondents followed.
Where a statute mandates the imposition of a consecutive sentence, the sentencing court[*2]is deemed to have imposed the consecutive sentence the lawrequires—even in the absence of an express judicial directive to that effect (see People ex rel. Gill v Greene, 12NY3d 1, 4 [2009]; People ex rel.Gathers v Artus, 63 AD3d 1435 [2009]; People ex rel. Hunter v Yelich, 63 AD3d 1424 [2009]; People ex rel. Styles v Rabsatt, 63AD3d 1365 [2009]). As a second felony offender, petitioner was subject to the consecutivesentencing provisions of Penal Law § 70.25 (2-a) and, therefore, we discern no error inDOCS's computation of his sentence (see Matter of Grey v Fischer, 63 AD3d 1431 [2009]; People ex rel. Taylor v Brown, 62AD3d 1063, 1064 [2009]). Petitioner's remaining contentions, to the extent not specificallyaddressed, have been examined and found to be lacking in merit. Accordingly, Supreme Court'sjudgment is reversed and the petition is dismissed.
Mercure, J.P., Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that thejudgment is reversed, on the law, without costs, and petition dismissed.