People ex rel. Taylor v. Brown

62 A.D.3d 1063, 877 N.Y.S.2d 707

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 2009
• Status: Published

Opinion

Appeal from an order of the Supreme Court (Zwack, J.), entered July 22, 2008 in Ulster County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1988, petitioner was sentenced to SVs to 25 years in prison for manslaughter in the first degree. He was paroled in February 1998. In March 2003, petitioner was sentenced as a second violent felony offender to several concurrent sentences, the longest of which was a 15-year term for criminal possession of a weapon in the second degree, but the sentencing court was silent as to whether the new sentences should run consecutively or concurrently to his previously imposed sentences. The Department of Correctional Services (hereinafter DOCS), relying upon Penal Law § 70.25 (2-a), calculated the sentences as running consecutively. Petitioner commenced this proceeding challenging the computation by DOCS of his sentence. Supreme Court denied petitioner’s application for a writ of habeas corpus, prompting this appeal.

The Court of Appeals recently answered this question directly, holding that, where a sentencing court imposes a sentence pursuant to Penal Law § 70.25 (2-a), “any sentence imposed by the court shall run consecutively to the undischarged sentence, whether the sentencing court says so or not” (People ex rel. Gill v Greene, 12 NY3d 1, 6 [2009]). Thus, the sentencing court committed no error and “DOCS properly interpreted [petitioner’s 2003] sentence as being consecutive to his previous undischarged sentence[ ], as Penal Law § 70.25 (2-a) requires” (id. at 7).

We have examined petitioner’s remaining arguments and find them to be without merit.

Cardona, P.J., Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed, without costs.