| Matter of Hunt v Fischer |
| 2009 NY Slip Op 07186 [66 AD3d 1105] |
| October 8, 2009 |
| Appellate Division, Third Department |
| In the Matter of Cary Hunt, Respondent, v Brian Fischer, asCommissioner of Correctional Services, Appellant. |
—[*1] Cary Hunt, Malone, respondent pro se.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered December 3, 2008 inFranklin County, which granted petitioner's application, in a proceeding pursuant to CPLRarticle 78, to annul a determination of the Department of Correctional Services calculatingpetitioner's prison sentence.
In November 2004, petitioner was sentenced as a second felony offender to a prison term of3 to 6 years upon his conviction of robbery in the third degree. Neither the sentence andcommitment order nor the sentencing minutes made any mention of how this sentence was to runrelative to petitioner's prior undischarged prison terms. The Department of Correctional Servicescalculated petitioner's 2004 sentence as running consecutively to his prior undischarged terms,prompting petitioner to commence this CPLR article 78 proceeding to challenge thatcomputation. Supreme Court annulled the determination and this appeal by respondent ensued.
Where a sentencing court is required by statute to impose a consecutive sentence, it isdeemed to have imposed the consecutive sentence the law requires—even in the absenceof a judicial pronouncement to that effect (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009]; People ex rel. Gathers v Artus, 63AD3d 1435 [2009]; People ex rel.Hunter v Yelich, 63 AD3d 1424 [2009]; People ex rel. Styles v Rabsatt, 63 AD3d 1365 [2009]). As asecond felony offender, petitioner was subject to the consecutive sentencing provisions of PenalLaw § 70.25 (2-a) and, therefore, we discern no error in the computation of his sentence(see Matter of Grey v Fischer, 63AD3d 1431 [2009]; People ex rel.Taylor v Brown, 62 AD3d 1063, 1064 [2009]). [*2]Petitioner's remaining contentions, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Rose, J.P., Kane, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition dismissed.