People ex rel. Hunter v Yelich |
2009 NY Slip Op 05065 [63 AD3d 1424] |
June 18, 2009 |
Appellate Division, Third Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York ex rel. Eddie Hunter, Respondent, v Bruce Yelich, as Superintendent of Bare Hill Correctional Facility, Appellant. |
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Lahtinen, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered January 28, 2009 in Franklin County, which granted petitioner's application, in a proceeding pursuant to CPLR article 70, and discharged petitioner.
In 1986, petitioner was convicted of two counts of robbery in the second degree and
sentenced to an aggregate term of 7 to 21 years in prison. Petitioner was convicted of robbery in
the second degree and robbery in the third degree in 1987 and sentenced to a prison term of
2
The Department of Correctional Services calculated petitioner's 1997 sentence as [*2]running consecutively to the undischarged portion of his 1986 sentences and his 2001 sentence as consecutive to all prior undischarged terms (see Penal Law § 70.25 [2-a]), prompting petitioner to commence this proceeding pursuant to CPLR article 70 to challenge that computation and the legality of his continued incarceration. Supreme Court granted petitioner's application and ordered that he be released, and respondent's subsequent motion for a stay pending appeal was granted by this Court.
There is no dispute that petitioner was sentenced in 1997 and 2001 as a second felony offender and, therefore, was subject to the provisions of Penal Law § 70.25 (2-a). To that end, the Court of Appeals has held that where, as here, the sentencing court is required to impose a consecutive sentence pursuant to Penal Law § 70.25 (2-a), "it is deemed to have imposed the consecutive sentence the law requires" (People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009])—regardless of whether it actually specifies that such sentence is consecutive (id. at 6). Under these circumstances, we discern no error in the computation of petitioner's sentence (see Matter of McMoore v Fischer, 61 AD3d 1187, 1188 [2009]; Matter of Soto v Fischer, 60 AD3d 1074 [2009]). Accordingly, Supreme Court's judgment is reversed and the petition is dismissed.
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and petition dismissed.