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Garcia v. Fischer

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


October 7, 2010

IN THE MATTER OF CHRISTOPHER GARCIA, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

Before: Peters, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (McGrath, 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 January 1999, petitioner was sentenced as a persistent violent felony offender to concurrent prison terms of 20 years to life upon his conviction of robbery in the first degree and robbery 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 terms. The Department of Correctional Services treated petitioner's 1999 sentence as running consecutively to his prior undischarged terms, prompting petitioner to commence this CPLR article 78 proceeding to challenge that computation. Supreme Court granted respondent's subsequent (and apparently unopposed) motion to dismiss and this appeal ensued.

There is no dispute that petitioner was sentenced in 1999 as a persistent 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 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]; Matter of Lowman v Fischer, 67 AD3d 1271, 1272 [2009]; Matter of Dalton v James, 66 AD3d 1095, 1096 [2009]). As we discern no error in the computation of petitioner's sentence (see Matter of Garner v Rivera, 68 AD3d 1230, 1231 [2009]), Supreme Court's judgment is affirmed. Petitioner's remaining contentions have been reviewed and found to be without merit.

Peters, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20101007

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