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

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


October 8, 2009

IN THE MATTER OF HARRY TUCKER, RESPONDENT,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: September 15, 2009

Before: Peters, J.P., Spain, Rose, Kane and Stein, JJ.

Appeal from a judgment of the Supreme Court (Platkin, J.), entered November 18, 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 January 2006, petitioner was sentenced as a second felony offender to a prison term of 13 years, followed by five years of postrelease supervision, upon his conviction of burglary in the second degree. Neither the sentence and commitment order nor the sentencing minutes specified whether this sentence was to run consecutively to or concurrently with petitioner's prior undischarged prison term. Respondent treated petitioner's 2006 sentence as running consecutively to his prior undischarged term, prompting petitioner to commence this CPLR article 78 proceeding to challenge that computation. Supreme Court annulled respondent's determination and this appeal 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 pronouncement to that effect (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009]; People ex rel. Gathers v Artus, 63 AD3d 1435, 1436 [2009]; People ex rel. Hunter v Yelich, 63 AD3d 1424, 1425 [2009]; People ex rel. Styles v Rabsatt, 63 AD3d 1365, 1366 [2009]). As there is no dispute that petitioner was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a) -- indeed, he concedes this point -- we discern no error in respondent's computation of his sentence (see Matter of Grey v Fischer, 63 AD3d 1431, 1432 [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., Spain, Rose, Kane and Stein, JJ., concur.

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

20091008

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