| Matter of Mena v Fischer |
| 2011 NY Slip Op 04138 [84 AD3d 1611] |
| May 19, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jorge Mena, Appellant, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Lynch, J.), entered October 13, 2010 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Department of Correctional Services calculatingpetitioner's prison sentence.
Petitioner was convicted of robbery in the first degree in November 1989 and sentenced to aprison term of 2 to 6 years. He was thereafter released to parole in February 1991 and, onNovember 1, 1993, arrested on new charges. Petitioner was found guilty of, among other things,murder in the second degree in November 1994, but sentencing did not take place until May 5,1995, when he was sentenced as a second felony offender to an aggregate prison term of 20 yearsto life. Based upon the new sentence, the Department of Correctional Services calculatedpetitioner's parole eligibility date to be December 26, 2014 and he then commenced this CPLRarticle 78 proceeding to challenge that calculation. Supreme Court dismissed the petition,prompting this appeal.
We affirm. Contrary to petitioner's contention, his parole was not revoked by operation oflaw, as the maximum expiration date on his 1989 sentence was December 28, 1994 andpetitioner was not sentenced on the 1993 charges until May 1995 (see Executive Law§ 259-i [3] [d] [iii]). Therefore, petitioner continued to serve his 1989 sentence after hisincarceration in [*2]November 1993 until that sentence expiredon its own terms on December 28, 1994. Thus, the Department properly credited all prison timethereafter served to the new commitment on his 1995 sentences (see Matter of Hot v New York State Dept.of Correctional Servs., 79 AD3d 1383, 1384 [2010], lv denied 16 NY3d 710[2011]; Matter of Villanueva vGoord, 29 AD3d 1097, 1098 [2006]; Matter of Du Bois v Goord, 271 AD2d874, 875-876 [2000]).
To the extent not specifically addressed, petitioner's remaining contentions have beenconsidered and found to be without merit.
Peters, J.P., Lahtinen, Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.