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In the Matter of Michael v. Brian Fischer

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


February 2, 2012

IN THE MATTER OF MICHAEL THOMPSON, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Devine, J.), entered June 16, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Corrections and Community Supervision calculating the length of petitioner's prison sentence.

The opinion of the court was delivered by: Spain, J.

MEMORANDUM AND ORDER

Calendar Date: January 10, 2012

Before: Mercure, Acting P.J., Rose, Spain, Malone Jr. and McCarthy, JJ.

In 1981, petitioner was convicted of numerous crimes, including, as relevant herein, two counts of murder in the second degree and one count of robbery in the first degree, which were affirmed on appeal (People v Thompson, 156 AD2d 961 [1989]). Upon those convictions, petitioner was sentenced to two consecutive prison terms of 25 years to life on the murder counts, along with a concurrent sentence of 8a to 25 years on the robbery count. The Department of Corrections and Community Supervision determined that petitioner would accordingly serve an aggregate prison term of 50 years to life. Petitioner's challenge to this administrative sentencing calculation was unsuccessful, and he thereafter commenced this CPLR article 78 proceeding asserting, among other things, that the minimum sentences for the two murder counts should have been recalculated so that they ran concurrently. Supreme Court dismissed the proceeding on the merits, prompting this appeal.

We affirm. At the outset, we note that petitioner has abandoned his challenge to the calculation to his minimum term of imprisonment by failing to raise it in his brief to this Court (see Matter of Jones v Fischer, 84 AD3d 1604, 1605 [2011]). Instead, the sole contention advanced by petitioner is his request that his sentence be reduced pursuant to CPL 470.15. However, as this Court has previously noted, such a request for a sentence to be reduced in the interest of justice is beyond the scope of a CPLR article 78 proceeding (see Matter of Pride v Goord, 285 AD2d 766, 767 [2001]; Matter of Flowers v Miller, 284 AD2d 618, 619 [2001]; compare People v Mead, 53 AD3d 927, 928 [2008], lv denied 11 NY3d 834 [2008]).

Mercure, Acting P.J., Rose, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120202

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