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Hunt v. Fischer

66 A.D.3d 1105 Court N.Y. App. Div. Decision date 2009-10-08 English

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p. 1105
In the Matter of Cary Hunt, Respondent, v Brian Fischer, as Commissioner of Correctional Services, Appellant.
[886 NYS2d 261]

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered December 3, 2008 in Franklin County, which granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Department of Correctional Services calculating petitioner’s prison sentence.

p. 1106
In November 2004, petitioner was sentenced as a second felony offender to a prison term of 3 to 6 years upon his conviction of robbery in the third degree. Neither the sentence and commitment order nor the sentencing minutes made any mention of how this sentence was to run relative to petitioner’s prior undischarged prison terms. The Department of Correctional Services calculated petitioner’s 2004 sentence as running consecutively to his prior undischarged terms, prompting petitioner to commence this CPLR article 78 proceeding to challenge that computation. Supreme Court annulled the determination and this appeal by respondent ensued.

Where a sentencing court is required by statute to impose a consecutive sentence, it is deemed to have imposed the consecutive sentence the law requires—even in the absence of a judicial pronouncement to that effect (see People ex rel. Gill v Greene, 12 NY3d 1 , 4 [2009]; People ex rel. Gathers v Artus, 63 AD3d 1435 [2009]; People ex rel. Hunter v Yelich, 63 AD3d 1424 [2009]; People ex rel. Styles v Rabsatt, 63 AD3d 1365 [2009]). As a second felony offender, petitioner was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a) and, therefore, we discern no error in the computation of his sentence (see Matter of Grey v Fischer, 63 AD3d 1431 [2009]; People ex rel. Taylor v Brown, 62 AD3d 1063 , 1064 [2009]). Petitioner’s remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

Rose, J.P., Kane, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and petition dismissed.

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