| Matter of Meade v Boucaud |
| 2009 NY Slip Op 08717 [67 AD3d 1263] |
| November 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Allen Meade, Appellant-Respondent, v AnthonyBoucaud, as Superintendent of Altona Correctional Facility, et al.,Respondents-Appellants. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents-appellants.
Cross appeals from a judgment of the Supreme Court (Feldstein, J.), entered September 15,2008 in Clinton County, which partially granted petitioner's application, in a proceedingpursuant to CPLR article 78, to annul a determination of the Department of CorrectionalServices calculating petitioner's prison sentence.
In September 2006, petitioner was sentenced as a second felony offender to a prison term of1½ to 3 years upon his conviction of attempted robbery in the third degree—a crimehe committed while on parole. Neither the sentence and commitment order nor the sentencingminutes addressed the manner in which this sentence was to run relative to petitioner's priorundischarged prison term. The Department of Correctional Services ultimately treatedpetitioner's 2006 sentence as running consecutively to his prior undischarged term, promptingpetitioner to commence a habeas corpus proceeding to challenge that computation, the legality ofhis continued incarceration and the alleged failure to provide him with a timely parole revocationhearing. Supreme Court converted the matter to this CPLR article 78 petition, rejectedpetitioner's arguments relative to the revocation of his parole and granted the petition to theextent of annulling the sentencing calculation. These cross appeals ensued.[*2]
Preliminarily, petitioner was not entitled to a parolerevocation hearing because his parole was revoked by operation of law upon his conviction ofattempted robbery in the third degree—a crime he committed while on parole from thepreviously imposed prison sentence (see Executive Law § 259-i [3] [d] [iii];Matter of Tineo v New York State Div. of Parole, 14 AD3d 949, 950 [2005]; Matterof Oquendo v Travis, 300 AD2d 773, 774 [2002]; see also People ex rel. Strauss v NewYork State Div. of Parole, 55 AD3d 1198, 1199 [2008], lv denied 12 NY3d 702[2009]; People ex rel. Jackson v Morrissey, 43 AD3d 1301, 1301-1302 [2007], lvdenied 9 NY3d 816 [2007]). Petitioner's remaining arguments on this point, to the extentthey are properly before us, have been examined and found to be lacking in merit.
Turning to the cross appeal by respondents, where a statute compels the sentencing court toimpose a consecutive sentence, the court is deemed to have imposed the sentence required bylaw—even if it fails to so specify (see People ex rel. Gill v Greene, 12 NY3d 1, 4[2009], cert denied sub nom. Gill v Rock, 558 US —, 130 S Ct 86 [2009];People ex rel. Nadal v Rivera, 63 AD3d 1434, 1435 [2009]; People ex rel. Hunter vYelich, 63 AD3d 1424, 1425 [2009]; People ex rel. Styles v Rabsatt, 63 AD3d 1365,1366 [2009]). As there is no dispute that petitioner was sentenced in 2006 as a second felonyoffender and, hence, was subject to the consecutive sentencing provisions of Penal Law §70.25 (2-a), we discern no error in the computation of his sentence (see Matter of Grey vFischer, 63 AD3d 1431, 1432 [2009]). Accordingly, Supreme Court's judgment is modifiedto that extent and the petition is dismissed.
Cardona, P.J., Peters, Lahtinen, Kane and Stein, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as granted petitioner'sapplication to annul the sentencing calculation of the Department of Correctional Services;petition dismissed in its entirety; and, as so modified, affirmed.