Matter of Holmes v Brown

Matter of Holmes v Brown 2009 NY Slip Op 08939 [68 AD3d 1240] December 3, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of David Holmes, Respondent, v William Brown, as Superintendent of Eastern Correctional Facility, et al., Appellants.

—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for appellants.

David Holmes, Napanoch, respondent pro se.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered February 3, 2009 in Ulster County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Department of Correctional Services calculating petitioner's prison sentence.

In October 2002, petitioner was sentenced as a persistent violent felony offender to an aggregate prison term of 16 years to life upon his conviction of, among other things, burglary in the second degree. Neither the amended sentence and commitment order nor the sentencing minutes addressed the manner in which this sentence was to run relative to petitioner's prior undischarged prison term. Respondent Department of Correctional Services treated petitioner's 2002 sentence as running consecutively to his prior undischarged term, prompting petitioner to commence a habeas corpus proceeding to challenge that computation and the legality of his continued incarceration. Supreme Court (Connolly, J.) converted the matter to this CPLR article 78 proceeding and respondents answered. Thereafter, Supreme Court (Cahill, J.) annulled the sentencing calculation, resulting in this appeal.

Where a statute mandates the imposition of a consecutive sentence, the sentencing court is [*2]deemed to have imposed the consecutive sentence the law requires—even in the absence of an express judicial directive to that effect (see People ex rel. Gill v Greene, 12 NY3d 1, 4 [2009], cert denied sub nom. Gill v Rock, 558 US —, 130 S Ct 86 [2009]; People ex rel. Berman v Artus, 63 AD3d 1436, 1437 [2009]; People ex rel. Nadal v Rivera, 63 AD3d 1434, 1435 [2009]; People ex rel. Styles v Rabsatt, 63 AD3d 1365, 1366 [2009]). As there is no dispute that petitioner was sentenced as a persistent violent felony offender and, therefore, was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a), we perceive no error in the computation of his sentence (see People ex rel. Lopez v Yelich, 63 AD3d 1433, 1434 [2009]). Accordingly, Supreme Court's judgment is reversed and the petition is dismissed.

Mercure, J.P., Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and petition dismissed.