Tucker v. New York State Department of Correctional Services

Appellate Division of the Supreme Court of New York

Tucker v. New York State Department of Correctional Services

66 A.D.3d 1103, 886 N.Y.S.2d 516

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

DecidedOctober 8, 2009

StatusPublished

Cited by9 cases

This text of 66 A.D.3d 1103 (Tucker v. New York State Department of Correctional Services) 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

Tucker v. New York State Department of Correctional Services, 66 A.D.3d 1103, 886 N.Y.S.2d 516 (N.Y. Ct. App. 2009).

Pincite

Opinion

Appeal from a judgment of the Supreme Court (Platkin, J.), entered November 18, 2008 in Ulster County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent calculating petitioner’s prison sentence.

In January 2006, petitioner was sentenced as a second felony offender to a prison term of 13 years, followed by five years of postrelease supervision, upon his conviction of burglary in the second degree. Neither the sentence and commitment order nor the sentencing minutes specified whether this sentence was to [1104]*1104run consecutively to or concurrently with petitioner’s prior undischarged prison term. Respondent treated petitioner’s 2006 sentence as running consecutively to his prior undischarged term, prompting petitioner to commence this CPLR article 78 proceeding to challenge that computation. Supreme Court annulled respondent’s determination and this appeal ensued.

Where a statute mandates the imposition of a consecutive sentence, the sentencing court is deemed to have imposed the consecutive sentence the law requires—even in the absence of an express judicial pronouncement to that effect (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009]; People ex rel. Gathers v Artus, 63 AD3d 1435, 1436 [2009]; People ex rel. Hunter v Yelich, 63 AD3d 1424, 1425 [2009]; People ex rel. Styles v Rabsatt, 63 AD3d 1365, 1366 [2009]). As there is no dispute that petitioner was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a)—indeed, he concedes this point—we discern no error in respondent’s computation of his sentence (see Matter of Grey v Fischer, 63 AD3d 1431, 1432 [2009]; People ex rel. Taylor v Brown, 62 AD3d 1063, 1064 [2009]). Accordingly, Supreme Court’s judgment is reversed and the petition is dismissed.

Peters, J.E, Spain, Rose, Kane and Stein, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and petition dismissed.

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

Appeal from a judgment of the Supreme Court (Platkin, J.), entered November 18, 2008 in Ulster County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent calculating petitioner’s prison sentence.

In January 2006, petitioner was sentenced as a second felony offender to a prison term of 13 years, followed by five years of postrelease supervision, upon his conviction of burglary in the second degree. Neither the sentence and commitment order nor the sentencing minutes specified whether this sentence was to [1104]*1104run consecutively to or concurrently with petitioner’s prior undischarged prison term. Respondent treated petitioner’s 2006 sentence as running consecutively to his prior undischarged term, prompting petitioner to commence this CPLR article 78 proceeding to challenge that computation. Supreme Court annulled respondent’s determination and this appeal ensued.

Where a statute mandates the imposition of a consecutive sentence, the sentencing court is deemed to have imposed the consecutive sentence the law requires—even in the absence of an express judicial pronouncement to that effect (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009]; People ex rel. Gathers v Artus, 63 AD3d 1435, 1436 [2009]; People ex rel. Hunter v Yelich, 63 AD3d 1424, 1425 [2009]; People ex rel. Styles v Rabsatt, 63 AD3d 1365, 1366 [2009]). As there is no dispute that petitioner was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a)—indeed, he concedes this point—we discern no error in respondent’s computation of his sentence (see Matter of Grey v Fischer, 63 AD3d 1431, 1432 [2009]; People ex rel. Taylor v Brown, 62 AD3d 1063, 1064 [2009]). Accordingly, Supreme Court’s judgment is reversed and the petition is dismissed.

Peters, J.E, Spain, Rose, Kane and Stein, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and petition dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

66 A.D.3d 1103, 886 N.Y.S.2d 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tucker-v-new-york-state-department-of-correctional-services-nyappdiv-2009.

Opinion

Related

Cite This Page — Counsel Stack