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Holmes v. Brown

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


December 3, 2009

IN THE MATTER OF DAVID HOLMES, RESPONDENT,
v.
WILLIAM BROWN, AS SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, ET AL., APPELLANTS.

MEMORANDUM AND ORDER

Calendar Date: October 14, 2009

Before: Mercure, J.P., Rose, Lahtinen, Malone Jr. and Garry, JJ.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered February 3, 2009 in Ulster County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Department of Correctional Services calculating petitioner's prison sentence.

In October 2002, petitioner was sentenced as a persistent violent felony offender to an aggregate prison term of 16 years to life upon his conviction of, among other things, burglary in the second degree. Neither the amended sentence and commitment order nor the sentencing minutes addressed the manner in which this sentence was to run relative to petitioner's prior undischarged prison term. Respondent Department of Correctional Services treated petitioner's 2002 sentence as running consecutively to his prior undischarged term, prompting petitioner to commence a habeas corpus proceeding to challenge that computation and the legality of his continued incarceration. Supreme Court (Connolly, J.) converted the matter to this CPLR article 78 proceeding and respondents answered. Thereafter, Supreme Court (Cahill, J.) annulled the sentencing calculation, resulting in this appeal.

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], cert denied sub nom. Gill v Rock, ___ US ___, 130 S Ct 86 [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 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.

Mercure, J.P., Rose, Lahtinen, Malone Jr. and Garry, JJ., concur.

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

20091203

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