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Harper v. Fischer

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


November 25, 2009

IN THE MATTER OF ALLEN HARPER, APPELLANT-RESPONDENT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS-APPELLANTS.

MEMORANDUM AND ORDER

Calendar Date: October 23, 2009

Before: Rose, J.P., Kavanagh, Stein, McCarthy and Garry, JJ.

Cross appeals from a judgment of the Supreme Court (Donohue, J.), entered January 20, 2009 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Department of Correctional Services calculating petitioner's prison sentence.

In June 2002, petitioner was sentenced as a persistent violent felony offender to an aggregate prison term of 20 years to life upon his conviction of robbery in the first degree, robbery in the second degree and criminal possession of a weapon in the third degree. Neither the sentence and commitment order nor the sentencing minutes specified the manner in which this sentence was to run relative to petitioner's prior undischarged prison terms. The Department of Correctional Services treated petitioner's 2002 sentence as running consecutively to his prior undischarged terms, prompting petitioner to commence this CPLR article 78 proceeding to challenge that computation. Supreme Court annulled the sentencing calculation and granted respondents a stay pending the Court of Appeals' resolution of People ex rel. Gill v Greene (48 AD3d 1003 [2008], revd 12 NY3d 1 [2009], cert denied sub nom. Gill v Rock, ___ US ___ [Oct. 5, 2009]). These appeals ensued.*fn1

Where a statute mandates the imposition of a consecutive sentence, the sentencing court is deemed to have imposed the consecutive sentence required -- even in the absence of an express judicial directive to that effect (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009], cert denied sub nom. Gill v Rock, ___ US ___ [Oct. 5, 2009]; People ex rel. Berman v Artus, 63 AD3d 1436, 1437 [2009]; People ex rel Nadal v Rivera, 63 AD3d 1434, 1435 [2009]; People ex rel. Styles v Rabsatt, 63 AD3d 1365, 1366 [2009]). As there is no dispute that petitioner was sentenced in 2002 as a persistent violent felony offender and, therefore, was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a), we perceive no error in the computation of his sentence (see People ex rel. Lopez v Yelich, 63 AD3d 1433, 1434 [2009]). Accordingly, Supreme Court's judgment is reversed and the petition is dismissed.

Rose, J.P., Kavanagh, Stein, McCarthy and Garry, JJ., concur.

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


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