| People ex rel. Catts v Haggett |
| 2009 NY Slip Op 08760 [67 AD3d 1315] |
| November 25, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Clifton Catts,Respondent, v William T. Haggett, as Superintendent of Mt. McGregor Correctional Facility,Appellant. |
—[*1]
Appeal from a judgment of the Supreme Court (Ferradino, J.), entered February 17, 2009 inSaratoga County, which partially granted petitioner's application, in a proceeding pursuant toCPLR article 70, to annul a determination of the Department of Correctional Services anddirected that petitioner be resentenced.
In August 2007, petitioner was sentenced as a second felony offender to a prison term of2½ years followed by two years of postrelease supervision upon his conviction of criminalpossession of a controlled substance in the fifth degree. Neither the sentence and commitmentorder nor the sentencing minutes addressed the manner in which this sentence was to run relativeto petitioner's prior undischarged prison term. The Department of Correctional Services treatedpetitioner's 2007 sentence as running consecutively to his prior undischarged term, promptingpetitioner to commence a habeas corpus proceeding to challenge that computation and thelegality of his continued incarceration. Supreme Court partially granted petitioner's applicationand ordered that he be resentenced. This appeal by respondent followed.
Preliminarily, petitioner's conditional release to parole supervision in September 2009 doesnot render this proceeding moot, as the challenged sentencing calculation affects, among otherthings, [*2]his maximum expiration date (cf. People ex rel.Berman v Artus, 63 AD3d 1436, 1437 [2009]). Accordingly, we will consider this matter asa proceeding pursuant to CPLR article 78 and address the merits (see id. at 1437; CPLR103 [c]).
There is no dispute that petitioner was sentenced in 2007 as a second felony offender and,therefore, was subject to the consecutive sentencing provisions of Penal Law § 70.25(2-a). Where a statute compels the imposition of a consecutive sentence, the sentencing court isdeemed to have imposed the consecutive sentence the law requires—even if it otherwise issilent on this point (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009], certdenied sub nom. Gill v Rock, 558 US —, 130 S Ct 86 [2009]; People ex rel.Young v Artus, 63 AD3d 1488, 1489 [2009]; People ex rel. Berman v Artus, 63AD3d at 1437; People ex rel. Hunter v Yelich, 63 AD3d 1424, 1425 [2009]).Accordingly, we perceive no error in the computation of petitioner's sentence (see Matter ofGrey v Fischer, 63 AD3d 1431, 1432 [2009]). Supreme Court's judgment is, therefore,reversed and the petition is dismissed.
Peters, J.P., Spain, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition dismissed.