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People ex rel Taylor v. Brown

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


May 7, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. ROBERT TAYLOR, APPELLANT,
v.
WILLIAM BROWN, AS SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: April 8, 2009

Before: Cardona, P.J., Rose, Lahtinen, Kavanagh and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Zwack, J.), entered July 22, 2008 in Ulster County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1988, petitioner was sentenced to 8 to 25 years in prison for manslaughter in the first degree. He was paroled in February 1998. In March 2003, petitioner was sentenced as a second violent felony offender to several concurrent sentences, the longest of which was a 15-year term for criminal possession of a weapon in the second degree, but the sentencing court was silent as to whether the new sentences should run consecutively or concurrently to his previously imposed sentences. The Department of Correctional Services (hereinafter DOCS), relying upon Penal Law § 70.25 (2-a), calculated the sentences as running consecutively. Petitioner commenced this proceeding challenging the computation by DOCS of his sentence. Supreme Court denied petitioner's application for a writ of habeas corpus, prompting this appeal.

The Court of Appeals recently answered this question directly, holding that, where a sentencing court imposes a sentence pursuant to Penal Law § 70.25 (2-a), "any sentence imposed by the court shall run consecutively to the undischarged sentence, whether the sentencing court says so or not" (People ex rel. Gill v Greene, 12 NY3d 1, ___, 2009 NY Slip Op 01067, *6 [2009]). Thus, the sentencing court committed no error and "DOCS properly interpreted [petitioner's 2003] sentence as being consecutive to his previous undischarged sentence[], as Penal Law § 70.25 (2-a) requires" (id. at *7).

We have examined petitioner's remaining arguments and find them to be without merit.

Cardona, P.J., Rose, Lahtinen, Kavanagh and Stein, JJ., concur.

ORDERED that the order is affirmed, without costs.

20090507

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