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People ex rel Coleman v. Napoli

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


December 17, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. MARK COLEMAN, APPELLANT,
v.
DAVID NAPOLI, AS SUPERINTENDENT OF SOUTHPORT CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: November 4, 2009

Before: Cardona, P.J., Spain, Kane, Stein and McCarthy, JJ.

Appeal from a judgment of the Supreme Court (Fitzgerald, J.), entered March 12, 2009 in Chemung County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In December 1997, petitioner was sentenced, as a second felony offender, to a prison term of 41/2 to 9 years for his conviction of criminal sale of a controlled substance in the third degree. In March 2003, while on parole, petitioner was convicted of attempted criminal sale of a controlled substance in the third degree and sentenced, again as a second felony offender, to a prison term of 3 to 6 years. The sentencing court was silent about whether the new sentence was to run consecutively to or concurrently with the undischarged sentence imposed in 1997. The Department of Correctional Services calculated the sentences as running consecutively and set petitioner's maximum expiration date at September 6, 2014. Petitioner, thereafter, commenced this CPLR article 70 proceeding to challenge that computation. Supreme Court dismissed petitioner's application and he now appeals.

We affirm. The record reflects that petitioner was sentenced in March 2003 as a second felony offender pursuant to Penal Law § 70.06 and, as such, Penal Law § 70.25 (2-a) requires that his 2003 sentence be served consecutively to the undischarged portion of his 1997 sentence (see People ex rel. Gill v Greene, 12 NY3d 1, 6 [2009], cert denied sub nom. Gill v Rock, ___ US ___, 130 S Ct 86 [2009]; People ex rel. Lopez v Yelich, 63 AD3d 1433, 1434 [2009]). Therefore, there was no error in the Department's computation, despite the fact that the sentencing court was silent on the issue (see People ex rel. Nadal v Rivera, 63 AD3d 1434, 1435 [2009]; People ex rel. Lopez v Yelich, 63 AD3d at 1434).

Cardona, P.J., Spain, Kane, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20091217

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