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Holliman v. New York State Dep't of Correctional Services

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


October 1, 2009

IN THE MATTER OF DANIEL HOLLIMAN, RESPONDENT,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: September 9, 2009

Before: Peters, J.P., Rose, Lahtinen, Kane and Malone Jr., JJ.

Appeal from a judgment of the Supreme Court (Platkin, J.), entered December 1, 2008 in Ulster County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent calculating petitioner's prison sentence.

In August 2001, petitioner was sentenced as a second felony offender to an aggregate prison term of 25 to 50 years following his conviction of various drug-related crimes. Neither the sentencing minutes nor the commitment order specified the manner in which the sentences imposed were to run relative to petitioner's prior undischarged prison term. Respondent calculated petitioner's 2001 sentences as running consecutively to his undischarged prison term, prompting petitioner to commence this proceeding pursuant to CPLR article 78 to challenge that computation. Supreme Court annulled respondent's determination and ordered that petitioner be resentenced. This appeal by respondent ensued.

Where a statute mandates the imposition of a consecutive sentence, the sentencing court is deemed to have imposed the consecutive sentence the law requires -- even in the absence of an express judicial directive to that effect (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009]; People ex rel. Gathers v Artus, 63 AD3d 1435 [2009]; People ex rel. Hunter v Yelich, 63 AD3d 1424 [2009]; People ex rel. Styles v Rabsatt, 63 AD3d 1365 [2009]). As there is no dispute that petitioner was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a) -- indeed, petitioner conceded this point in his petition -- we discern no error in respondent's computation of his sentence (see Matter of Grey v Fischer, 63 AD3d 1431 [2009]; People ex rel. Taylor v Brown, 62 AD3d 1063, 1064 [2009]). Accordingly, Supreme Court's judgment is reversed and the petition is dismissed.

Peters, J.P., Rose, Lahtinen, Kane and Malone Jr., JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, and petition dismissed.

20091001

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