| Matter of Welch v Fischer |
| 2010 NY Slip Op 00748 [70 AD3d 1077] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Elbert Welch, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered April 20, 2009 inFranklin County, which converted petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, into a proceeding pursuant to CPLR article 78 anddismissed the petition.
Petitioner was sentenced in 1978 to an aggregate prison term of 12½ to 25 years forvarious crimes including attempted murder in the second degree, and the sentence was ordered tobe served consecutively to an undischarged prison term that petitioner received in 1976. Whileon parole, petitioner committed new crimes and, in July 2000, was sentenced to an aggregateprison term of 14 to 30 years for his conviction of those crimes, which included criminalpossession of a controlled substance in the third degree and criminal sale of a controlledsubstance in the third degree. After the Department of Correctional Services (hereinafter DOCS)calculated those new sentences as running consecutively to petitioner's undischarged prisonsentences, he commenced a proceeding pursuant to CPLR article 70, asserting that DOCS erredin determining the sentences to run consecutively and, consequently, he was entitled toimmediate release on conditional parole. After converting the matter from a proceeding for a writof habeas corpus to a CPLR article 78 proceeding, Supreme Court dismissed the petition, findingthat DOCS did not err in calculating petitioner's sentence. This appeal ensued.
We affirm. Pursuant to Penal Law § 70.25 (1), when a person subject to anundischarged term of imprisonment is sentenced to an additional term of imprisonment, "the[*2]sentence or sentences imposed by the court shall run eitherconcurrently or consecutively with respect to each other and the undischarged term or terms insuch manner as the court directs at the time of sentence." Here, at petitioner's July 2000sentencing, County Court (Punch, J.) stated unequivocally that petitioner's new sentences were tobe served "consecutively to any previously imposed term of imprisonment." Therefore, we findthat DOCS did not err in calculating petitioner's maximum expiration date.
We have examined petitioner's remaining contentions and find them to be without merit orrendered academic by our decision.
Mercure, J.P., Spain, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgmentis affirmed, without costs.