State of New York Supreme Court, Appellate Division Third Judicial Department
February 2, 2012
IN THE MATTER OF ERROL THOMAS, APPELLANT,
A. DEL GAIZO, INMATE RECORDS COORDINATOR FOR THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
Appeal from a judgment of the Supreme Court (McNamara, J.), entered March 28, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's request for a recalculation of his parole eligibility date.
The opinion of the court was delivered by: Kavanagh, J.
MEMORANDUM AND ORDER
Calendar Date: January 13, 2012
Before: Mercure, Acting P.J., Peters, Malone Jr., Kavanagh and McCarthy, JJ.
Following a jury trial, petitioner was convicted of the crimes of rape in the first degree, attempted rape in the first degree, sexual abuse in the first degree (three counts), sexual abuse in the second degree (two counts) and assault in the second degree (three counts). Thereafter, he was sentenced to prison terms of 121/2 to 25 years on the rape count, 71/2 to 15 years on the attempted rape count, 31/2 to 7 years on each count of sexual abuse in the first degree, 1 year for each of the two counts of sexual abuse in the second degree and 31/2 to 7 years for each of the three assault counts. With the exception of the sentences imposed for sexual abuse in the second degree, all sentences were to run consecutive to one another.
Subsequently, federal district court granted, in part, petitioner's habeas corpus application, finding that it was error to impose consecutive rather than concurrent sentences on each of the first-degree sexual abuse convictions, and remitted the matter to Supreme Court for resentencing on those counts. Supreme Court thereafter resentenced petitioner and, after being notified by respondent of the recalculation of his sentence, petitioner commenced this CPLR article 78 proceeding claiming that the resentencing court failed to indicate the manner in which the sentences were to be served and, therefore, pursuant to Penal Law § 70.25, all the sentences imposed are to run concurrently. According to petitioner, this results in a total aggregate prison term of 121/2 to 25 years and not that calculated by respondent which, by operation of law (see Penal Law § 70.30  [e] [i], [vi]), amounted to an aggregate term of 25 to 50 years. Supreme Court dismissed the petition and this appeal ensued.
Contrary to petitioner's contention, the resentencing court was not silent as to the manner in which the sentences were to run. Upon resentencing, Supreme Court explicitly stated that, except for the modification of the sexual abuse in the first degree sentences to be run concurrently, the "previous sentences will remain in effect." The 1997 originally imposed sentences for the rape, attempted rape and assault in the second degree convictions were ordered to run consecutive to each other. Furthermore, inasmuch as a review of the record reveals no error in the calculation of the consecutively imposed sentences, Supreme Court's judgment will not be disturbed.
Mercure, Acting P.J., Peters, Malone Jr. and McCarthy, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ENTER: Robert D. Mayberger
Clerk of the Court
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