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In the Matter of Maximino v. Brian Fischer

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


December 13, 2012

IN THE MATTER OF MAXIMINO ESTRADA, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

Appeal from a judgment of the Supreme Court (Devine, J.), entered November 17, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying his request for recalculation of his maximum term of imprisonment.

MEMORANDUM AND ORDER

Calendar Date: October 29, 2012

Before: Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ.

In 2002, petitioner was convicted of manslaughter in the first degree, a class B violent felony (see Penal Law § 70.02 [1] [a]), and attempted robbery in the first degree and criminal possession of a weapon in the second degree, both class C violent felonies (see Penal Law § 70.02 [1] [b]). He was sentenced to prison terms of 25 years on the manslaughter conviction, seven years on the attempted robbery conviction and seven years on the criminal possession conviction, each to be followed by five years of postrelease supervision. The manslaughter and criminal possession convictions were to run concurrently to one another, but consecutively to the attempted robbery conviction, resulting in an aggregate maximum prison term of 32 years. Approximately eight years after his incarceration, petitioner requested the inmate records coordinator at the facility where he was housed to recalculate his prison term based upon the provisions of Penal Law § 70.30 (1) (e) (i) which, he claimed, would result in a reduction of the maximum term of his imprisonment to 30 years. When his request was denied, he commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition, resulting in this appeal.

We affirm. Penal Law § 70.30 (1) (e) provides, in limited circumstances, for the reduction of the aggregate maximum term of imprisonment where consecutive determinate sentences have been imposed for two or more crimes. Penal Law § 70.30 (1) (e) (i) states, in relevant part, that: "Except as provided in subparagraph (ii), (iii), (iv), (v), (vi) or (vii) of this paragraph, the aggregate maximum term of consecutive sentences, all of which are . . . determinate sentences, imposed for two or more crimes, other than two or more crimes that include a class A felony, committed prior to the time the person was imprisoned under any of such sentences shall, if it exceeds [20] years, be deemed to be [20] years, unless one of the sentences was imposed for a class B felony, in which case the aggregate maximum term shall, if it exceeds [30] years, be deemed to be [30] years" (emphasis added). Petitioner contends that because he received consecutive determinate sentences for the crimes of manslaughter in the first degree and attempted robbery in the first degree, the former of which is a class B felony, and his aggregate maximum term of imprisonment was 32 years, said term should be reduced to 30 years.

We find petitioner's argument to be unpersuasive. Significantly, it ignores the express language at the beginning of this provision which makes it subject to other provisions of the statute and overlooks the fact that petitioner's manslaughter conviction was a class B violent felony and his robbery conviction was a violent felony as well. Notably, Penal Law § 70.30 (1) (e) (iv), one of the sections referenced in Penal Law § 70.30 (1) (e) (i), addresses the situation where consecutive determinate sentences have been imposed for violent felony offenses. Penal Law § 70.30 (1) (e) (iv) provides: "Notwithstanding subparagraph (i) of this paragraph, the aggregate maximum term of consecutive sentences, all of which are . . . determinate sentences, imposed for the conviction of two violent felony offenses committed prior to the time the person was imprisoned under any of such sentences and one of which is a class B violent felony offense, shall, if it exceeds [40] years, be deemed to be [40] years." The above provision is the only one applicable to petitioner inasmuch as he received consecutive determinate sentences for two violent felony offenses. However, given that he did not receive an aggregate maximum term of imprisonment of more than 40 years, he is not entitled to a reduction of the sentence under the statute. Supreme Court properly concluded that the recalculation of petitioner's maximum aggregate term of imprisonment was not warranted and dismissed the petition.

Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20121213

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