Matter of Mingo v Annucci
2008 NY Slip Op 02711 [49 AD3d 1106]
March 27, 2008
Appellate Division, Third Department
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 14, 2008
Matter of Mingo v Annucci
In the Matter of Gregory Mingo, Appellant, v Anthony Annucci, as Deputy Commissioner of Correctional Services, Respondent.
—[*1] Gregory Mingo, Elmira, appellant pro se.
Andrew M. Cuomo, Attorney General, Albany (David M. Finkelstein of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Stein, J.), entered May 30, 2007 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services denying petitioner's request for a recalculation of his sentence.
In 1983, petitioner was sentenced to 25 years to life in prison on each of four counts of murder in the second degree, 12½ to 25 years for robbery in the first degree, 12½ to 25 years for burglary in the first degree and 2½ to 7 years for criminal possession of a weapon in the second degree. Two of the sentences for the murder convictions were set to run consecutively, with all other sentences running concurrently, for an aggregate prison term of 50 years to life. After exhausting his administrative remedies, petitioner commenced this CPLR article 78 proceeding challenging his sentence, arguing that, since a person has only one life, consecutive life sentences can be served only concurrently and, as such, the minimum period should be recalculated to run concurrently as well. Supreme Court dismissed the petition, prompting this appeal.
Contrary to petitioner's contentions, there is no provision of the Penal Law that prohibits the imposition of consecutive life sentences (see e.g. Matter of Roballo v Smith, 63 NY2d 485 ). The Department of Correctional Services properly calculated petitioner's sentence pursuant to Penal Law former § 70.30, as it read at the time of petitioner's sentencing. Pursuant to that [*2]provision, when sentences are set to run consecutively, the minimum periods are added to arrive at the aggregate minimum—which, here, is 50 years—and the maximum periods are added to arrive at the aggregate maximum—which, here, is life (see Penal Law former § 70.30  [b]).[FN*]
Petitioner's remaining contentions regarding the constitutionality of the statute were not raised in the petition and, thus, have not been preserved for this Court's review (see Matter of Killeen v Travis, 291 AD2d 600, 601 ; Matter of White v Goord, 278 AD2d 694, 694 ).
Cardona, P.J., Peters, Rose, Kane and Malone Jr., JJ., concur. Ordered that the judgment is
affirmed, without costs.
Footnote *: Petitioner concedes that the sentence limitations enumerated in Penal Law former § 70.30 (1) (c) and (d) are inapplicable to him.