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McBride v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


September 24, 2009

IN THE MATTER OF NATHAN MCBRIDE, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: August 3, 2009

Before: Cardona, P.J., Peters, Lahtinen, Malone Jr. and McCarthy, JJ.

Appeal from a judgment of the Supreme Court (Pritzker, J.), entered December 22, 2008 in Washington County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services computing petitioner's prison sentence.

Petitioner was convicted in 1988 of attempted manslaughter in the first degree and was sentenced as a second violent felony offender to a term of 4 to 8 years in prison. He was later released to parole supervision, but was convicted in 1995 of robbery in the first degree. For this crime, he was sentenced as a persistent violent felony offender to a term of 20 years to life in prison. Neither the sentencing minutes nor the order of commitment specified whether this sentence was to run concurrently with or consecutive to the prior undischarged term of imprisonment. The Department of Correctional Services determined that the sentences would run consecutive to one another. Petitioner, in turn, commenced this CPLR article 78 proceeding challenging the determination. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

We affirm. Penal Law § 70.25 (2-a) provides that where a person is sentenced as a persistent violent felony offender and there remains an undischarged term of imprisonment on a prior sentence, the new sentence shall run consecutive to the prior undischarged term of imprisonment (see Matter of Hendrix v Goord, 36 AD3d 1200, 1201 [2007], appeal dismissed 8 NY3d 980 [2007]). The Court of Appeals has held that this is the case even if the sentencing court has not expressly pronounced the manner in which the sentence is to run (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009]). As the Department of Correctional Services acted well within its authority in imposing consecutive sentences, Supreme Court properly dismissed the petition.

Cardona, P.J., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090924

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