Matter of Hannig v McCoy
2004 NY Slip Op 01276 [4 AD3d 685]
February 26, 2004
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 21, 2004


In the Matter of Michael Hannig, Appellant,
v
Joseph E. McCoy, as Superintendent of Cayuga Correctional Facility, et al., Respondents.

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Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered July 3, 2002 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services calculating the length of petitioner's term of imprisonment.

In 1997, petitioner was sentenced to two consecutive prison terms of 3½ to 7 years and 11/3 to 4 years for his convictions of criminal sale of a controlled substance in the fifth degree and driving while intoxicated, respectively. The sentences were added to produce an aggregate sentence of 45/6 to 11 years. Petitioner commenced this CPLR article 78 proceeding challenging the calculation of his sentence. By judgment dated June 26, 2002 and entered July 3, 2002, Supreme Court dismissed the petition finding that the Department of Correctional Services correctly calculated petitioner's minimum period of imprisonment by aggregating the minima two consecutive sentences. Petitioner's subsequent motion for reconsideration was denied on September 26, 2002. Thereafter, petitioner commenced this appeal.

Petitioner's appeal must be dismissed as untimely. On July 8, 2002, petitioner was served with Supreme Court's judgment entered July 3, 2002. Petitioner had 35 days from being served in which to file an appeal (see CPLR 5513 [a]; 2103 [b] [2]; [c]), however, the notice of appeal before this Court was not filed until October 15, 2002. Inasmuch as "[t]he statutory requirements regarding the time in which to bring an appeal are jurisdictional in nature and must be strictly adhered to" (Suarez v State of New York, 193 AD2d 1037, 1037 [1993]), petitioner's appeal must be dismissed (see Matter of Gaines v Coughlin, 236 AD2d 648, 649 [1997]; Matter of Johnson v Coombe, 236 AD2d 669 [1997]). Furthermore, petitioner's motion for reargument, which was denied on September 26, 2002, cannot be deemed as extending the time to file an appeal (see Matter of Barnes [Council 82, AFSCME], 235 AD2d 826 [1997]).

Crew III, J.P., Peters, Spain, Carpinello and Mugglin, JJ., concur. Ordered that the appeal is dismissed, without costs.