White v. Van Zandt

Appellate Division of the Supreme Court of New York

White v. Van Zandt

236 A.D.2d 763, 654 N.Y.S.2d 836, 1997 N.Y. App. Div. LEXIS 2040

Appellate Division of the Supreme Court of the State of New York·Decided February 27, 1997·Published·Cited by 4 cases

Opinion

—Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered June 7, 1996 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent calculating the length of petitioner’s sentence.

Petitioner was convicted of the crime of attempted burglary in the first degree and sentenced as a second felony offender to a prison term of lxh to 3 years in August 1993. While participating in the Temporary Release Program, petitioner committed another crime for which he was sentenced as a second felony offender on December 22, 1994, to a prison term of 2 to 4 years. Because the sentencing court did not indicate whether this sentence was to run consecutively or concurrently with the first one, petitioner contends that it must run concurrently. We disagree. Regardless of Supreme Court’s silence on the issue, petitioner’s 1994 sentence was required to be served consecutively with his preexisting unexpired sentence (see, Penal Law § 70.25 [2-a]; see also, Matter of Jackson v Wolford, 232 AD2d 795; Matter of Rolon v Senkowski, 160 AD2d 1072, appeal dismissed 76 NY2d 772).

[764]*764Crew III, J. P., White, Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered June 7, 1996 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent calculating the length of petitioner’s sentence.

Petitioner was convicted of the crime of attempted burglary in the first degree and sentenced as a second felony offender to a prison term of lxh to 3 years in August 1993. While participating in the Temporary Release Program, petitioner committed another crime for which he was sentenced as a second felony offender on December 22, 1994, to a prison term of 2 to 4 years. Because the sentencing court did not indicate whether this sentence was to run consecutively or concurrently with the first one, petitioner contends that it must run concurrently. We disagree. Regardless of Supreme Court’s silence on the issue, petitioner’s 1994 sentence was required to be served consecutively with his preexisting unexpired sentence (see, Penal Law § 70.25 [2-a]; see also, Matter of Jackson v Wolford, 232 AD2d 795; Matter of Rolon v Senkowski, 160 AD2d 1072, appeal dismissed 76 NY2d 772).

[764]*764Crew III, J. P., White, Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.

White v. Van Zandt, 236 A.D.2d 763, 654 N.Y.S.2d 836, 1997 N.Y. App. Div. LEXIS 2040 (N.Y. Ct. App. 1997).

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Opinion

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