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Lagas v. New York State Dep't of Correctional Services

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


November 10, 2010

IN THE MATTER OF DAVID W. LAGAS, APPELLANT,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: September 29, 2010

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

Appeal from a judgment of the Supreme Court (McDonough, J.), entered February 12, 2010 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent calculating petitioner's sentence.

In September 2006, petitioner was convicted of, among other crimes, burglary in the third degree, and sentenced as a second felony offender to an aggregate term of 2 to 4 years in prison. After his release in September 2007, petitioner was arrested and convicted of new crimes and, as relevant here, was sentenced in February 2009 as a second felony offender to an aggregate prison term of 91/2 years followed by five years of postrelease supervision. County Court was silent as to how that term was to be served relative to petitioner's undischarged 2006 sentence. Respondent calculated petitioner's 2009 sentence as running consecutively to his 2006 sentence by operation of law, resulting in a tentative conditional release date of March 14, 2017 and a maximum expiration date of July 24, 2018.*fn1 Petitioner then commenced this CPLR article 78 proceeding to challenge respondent's calculation. Supreme Court dismissed petitioner's application, and this appeal ensued.

We affirm. Pursuant to the decision in People ex rel. Gill v Greene (12 NY3d 1, 6 [2009], cert denied sub nom. Gill v Rock, ___ US ___, 130 S Ct 86 [2009]), where a statute requires that a newly imposed sentence is to run consecutively to an undischarged sentence, the sentencing court is deemed to have complied with that statute, whether or not it states so specifically (see People ex rel. Nadal v Rivera, 63 AD3d 1434, 1435 [2009]). Petitioner's sole contention on this appeal is that his 2009 sentence was imposed eight days before the Court of Appeals' decision in Gill and, therefore, the holding in that case should not be applied retroactively. To the contrary, the Court of Appeals' Gill decision merely clarified the meaning of the existing law, rather than announcing a substantive change, and therefore respondent's calculation did not constitute an improper retroactive application of new law (see Matter of McKinnon v Fischer, 69 AD3d 1083, 1084 [2010], lv dismissed 14 NY3d 935 [2010]; People v McCrae, 68 AD3d 1451, 1452 [2009]).

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

ORDERED that the judgment is affirmed, without costs.


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