Rabaev v. Yelich

Appellate Division of the Supreme Court of New York

Rabaev v. Yelich

72 A.D.3d 1301, 897 N.Y.S.2d 924

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 2010

StatusPublished

Cited by1 cases

This text of 72 A.D.3d 1301 (Rabaev v. Yelich) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rabaev v. Yelich, 72 A.D.3d 1301, 897 N.Y.S.2d 924 (N.Y. Ct. App. 2010).

Pincite

Opinion

Appeal from a judgment of the Supreme Court (Feldstein, J), entered May 4, 2009 in Franklin County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition.

In 2006, petitioner was sentenced as a second felony offender to a prison term of 2 to 4 years upon his conviction of criminal [1302]*1302possession of stolen property in the third degree. Neither the sentence and commitment order, nor the sentencing minutes, specified the manner in which this sentence was to run relative to petitioner’s prior undischarged prison terms. Respondent Department of' Correctional Services treated petitioner’s 2006 sentence as running consecutively to his prior undischarged terms, prompting petitioner to commence a habeas corpus proceeding to challenge that computation and the legality of his continued incarceration. After Supreme Court converted the matter to this CPLR article 78 proceeding, respondents moved to dismiss the petition. Supreme Court granted respondents’ motion and this appeal ensued.

Where a sentencing court is mandated by statute to impose a consecutive sentence, it is deemed to have imposed the consecutive sentence required by law—even in the absence of an express judicial directive to that effect (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009], cert denied sub nom. Gill v Rock, 558 US —, 130 S Ct 86 [2009]; Matter of Livingston v James, 66 AD3d 1096, 1097 [2009]; Matter of Dalton v James, 66 AD3d 1095, 1096 [2009]). Inasmuch as petitioner was sentenced in 2006 as a second felony offender and, therefore, was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a), we discern no error in the computation of his sentence (see Matter of Hunt v Fischer, 66 AD3d 1105, 1106 [2009]).

Contrary to petitioner’s assertion, calculating his sentence in compliance with Penal Law § 70.25 (2-a) neither imposes an additional sentence, constitutes a corrected sentence nor amounts to a resentencing. To the extent that petitioner contends that such sentence deprives him of the benefit of his plea bargain, his remedy is to seek whatever postconviction relief may be available to him in the context of a CPL article 440 motion.

Petitioner’s remaining contentions, including his due process claims, have been examined and found to be lacking in merit.

Cardona, P.J., Feters, Rose, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from a judgment of the Supreme Court (Feldstein, J), entered May 4, 2009 in Franklin County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition.

In 2006, petitioner was sentenced as a second felony offender to a prison term of 2 to 4 years upon his conviction of criminal [1302]*1302possession of stolen property in the third degree. Neither the sentence and commitment order, nor the sentencing minutes, specified the manner in which this sentence was to run relative to petitioner’s prior undischarged prison terms. Respondent Department of' Correctional Services treated petitioner’s 2006 sentence as running consecutively to his prior undischarged terms, prompting petitioner to commence a habeas corpus proceeding to challenge that computation and the legality of his continued incarceration. After Supreme Court converted the matter to this CPLR article 78 proceeding, respondents moved to dismiss the petition. Supreme Court granted respondents’ motion and this appeal ensued.

Where a sentencing court is mandated by statute to impose a consecutive sentence, it is deemed to have imposed the consecutive sentence required by law—even in the absence of an express judicial directive to that effect (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009], cert denied sub nom. Gill v Rock, 558 US —, 130 S Ct 86 [2009]; Matter of Livingston v James, 66 AD3d 1096, 1097 [2009]; Matter of Dalton v James, 66 AD3d 1095, 1096 [2009]). Inasmuch as petitioner was sentenced in 2006 as a second felony offender and, therefore, was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a), we discern no error in the computation of his sentence (see Matter of Hunt v Fischer, 66 AD3d 1105, 1106 [2009]).

Contrary to petitioner’s assertion, calculating his sentence in compliance with Penal Law § 70.25 (2-a) neither imposes an additional sentence, constitutes a corrected sentence nor amounts to a resentencing. To the extent that petitioner contends that such sentence deprives him of the benefit of his plea bargain, his remedy is to seek whatever postconviction relief may be available to him in the context of a CPL article 440 motion.

Petitioner’s remaining contentions, including his due process claims, have been examined and found to be lacking in merit.

Cardona, P.J., Feters, Rose, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.

Cite This Page — Counsel Stack

Bluebook (online)

72 A.D.3d 1301, 897 N.Y.S.2d 924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rabaev-v-yelich-nyappdiv-2010.

Opinion

Related

Cite This Page — Counsel Stack