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Walden v. Fischer

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


November 25, 2009

IN THE MATTER OF LAMONT WALDEN, RESPONDENT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: October 19, 2009

Before: Cardona, P.J., Mercure, Spain, Malone Jr. and Kavanagh, JJ.

Appeal from a judgment of the Supreme Court (Egan Jr., J.), entered September 29, 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 September 2007, petitioner was sentenced as a second felony offender to a prison term of 11/2 to 3 years upon his conviction of attempted assault in the second degree. Neither the sentencing minutes nor the sentence and commitment order specified the manner in which this sentence was to run relative to petitioner's prior undischarged prison terms. The Department of Correctional Services calculated petitioner's 2007 sentence as running consecutively to his prior undischarged prison terms, and petitioner thereafter commenced this CPLR article 78 proceeding to challenge that computation. Supreme Court annulled the sentencing calculation, prompting this appeal by respondent.

Where a sentencing court is required by statute to impose a consecutive sentence, it is deemed to have imposed the consecutive sentence the law requires -- regardless of whether there is a judicial pronouncement 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]; see People ex rel. Young v Artus, 63 AD3d 1488, 1489 [2009]; People ex rel. Berman v Artus, 63 AD3d 1436, 1437 [2009]; People ex rel. Gathers v Artus, 63 AD3d 1435, 1436 [2009]). As a second felony offender, petitioner was subject to the sentencing provisions of Penal Law § 70.25 (2-a) and, therefore, we discern no error in the computation of his sentence (see People ex rel. Taylor v Brown, 62 AD3d 1063, 1064 [2009]). Accordingly, Supreme Court's judgment is reversed and the petition is dismissed.

Cardona, P.J., Mercure, Spain, Malone Jr. and Kavanagh, JJ., concur.

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

20091125

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