Mabery v. Mann

Appellate Division of the Supreme Court of New York

Mabery v. Mann

197 A.D.2d 736, 602 N.Y.S.2d 440, 1993 N.Y. App. Div. LEXIS 9058

Appellate Division of the Supreme Court of the State of New York·Decided October 7, 1993·Published·Cited by 2 cases

Opinion

—Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 20, 1992 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to compel respondent to certify that petitioner is entitled to have 8V2 years of good time credited to his prison sentence.

Petitioner was not entitled to have his New York prison sentence run concurrently with the sentence he was serving in North Carolina at the time he was sentenced in New York (see, Penal Law § 70.25 [4]; § 70.30 [2-a]). Consequently, were we to assume that respondent had an obligation to certify good time accrued by an inmate, petitioner is not presently eligible for release from his New York sentence and, given that the availability of good time credit will be based in part upon future conduct, there is no clear legal right to the relief requested. This proceeding in the nature of mandamus was therefore properly dismissed (see, Klostermann v Cuomo, 61 NY2d 525, 539; Matter of Patchogue Nursing Ctr. v New York State Dept. of Health, 189 AD2d 1054).

Weiss, P. J., Mercure, Cardona, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 20, 1992 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to compel respondent to certify that petitioner is entitled to have 8V2 years of good time credited to his prison sentence.

Petitioner was not entitled to have his New York prison sentence run concurrently with the sentence he was serving in North Carolina at the time he was sentenced in New York (see, Penal Law § 70.25 [4]; § 70.30 [2-a]). Consequently, were we to assume that respondent had an obligation to certify good time accrued by an inmate, petitioner is not presently eligible for release from his New York sentence and, given that the availability of good time credit will be based in part upon future conduct, there is no clear legal right to the relief requested. This proceeding in the nature of mandamus was therefore properly dismissed (see, Klostermann v Cuomo, 61 NY2d 525, 539; Matter of Patchogue Nursing Ctr. v New York State Dept. of Health, 189 AD2d 1054).

Weiss, P. J., Mercure, Cardona, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.

Mabery v. Mann, 197 A.D.2d 736, 602 N.Y.S.2d 440, 1993 N.Y. App. Div. LEXIS 9058 (N.Y. Ct. App. 1993).

Pincite

197 A.D.2d 736 (Mabery v. Mann) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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