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Phillips v. Fischer

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


June 24, 2010

IN THE MATTER OF JAMES PHILLIPS, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: May 12, 2010

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

Appeal from a judgment of the Supreme Court (O'Connor, J.), entered October 22, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

In December 1997, petitioner was sentenced as a second violent felony offender to an aggregate prison term of 171/2 years upon his conviction of, among other crimes, burglary in the second degree. The sentence and commitment order was silent as to the manner in which this sentence was to run relative to petitioner's prior undischarged prison term. The Department of Correctional Services treated petitioner's 1997 sentence as running consecutively to his prior undischarged term, prompting petitioner to commence this CPLR article 78 proceeding to challenge that computation. Supreme Court granted respondent's subsequent, apparently unopposed, motion to dismiss and this appeal ensued.

There is no dispute that petitioner was sentenced in 1997 as a second violent felony offender and, therefore, was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a). Where, as here, a statute compels the sentencing court to impose a consecutive sentence, the 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], cert denied sub nom. Gill v Rock, ___ US ___, 130 S Ct 86 [2009]; Matter of Lowman v Fischer, 67 AD3d 1271, 1272 [2009]; Matter of High v Rabsatt, 67 AD3d 1262, 1263 [2009]). Accordingly, we discern no error in the computation of petitioner's sentence (see Matter of Garner v Rivera, 68 AD3d 1230, 1231 [2009]).

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

ORDERED that the judgment is affirmed, without costs.

20100624

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