Matter of Curry v Evans

Matter of Matter of Curry v Evans 2012 NY Slip Op 07348 Decided on November 8, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 8, 2012
513806

[*1]In the Matter of JAMES CURRY, Appellant,

v

ANDREA EVANS, as Chair of the Division of Parole, et al., Respondents.

Calendar Date: September 26, 2012
Before: Mercure, J.P., Spain, Kavanagh, Stein and Garry, JJ.


James Curry, Pine City, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Laura Etlinger of counsel), for respondents.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Lynch, J.), entered October 18, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to prohibit the Department of Corrections and Community Supervision from including the undischarged portion of a prior sentence in the calculation of petitioner's sentence.

In 1978, petitioner was convicted of murder in the second degree and sentenced to 15 years to life in prison. While on parole release from that sentence, petitioner was convicted of reckless endangerment in the first degree and sentenced to 1½ to 3 years in prison. As a result of that conviction, a final declaration of delinquency was issued by the Board of Parole and petitioner's parole was revoked. Following the denial of petitioner's request for parole release in November 2010, petitioner commenced this proceeding pursuant to CPLR article 78. Supreme Court dismissed the petition and petitioner appeals.[FN1] [*2]

Petitioner argues that the Department of Corrections and Community Supervision has improperly and illegally enlarged his sentence by including the undischarged portion of his 1978 sentence in calculating his release date as there was never a final parole revocation hearing and, therefore, no time assessment imposed. "[W]hen a parolee is convicted of a new felony which is committed while under supervision and, as a result, he or she is sentenced to an indeterminate term of imprisonment, revocation of parole occurs by operation of law and no hearing is necessary" (Matter of Taylor v Fischer, 67 AD3d 1191, 1193 [2009], lv denied 14 NY3d 702 [2010]; see Executive Law § 259-i [3] [d] [iii]; People ex rel. Harris v Sullivan, 74 NY2d 305, 308 [1989]). Accordingly, we find that the Department correctly extended, without a hearing, petitioner's maximum expiration date to include the delinquent time owed on the undischarged portion of his prior sentence (see Matter of Taylor v Fischer, 67 AD3d at 1193; Matter of Tineo v New York State Div. of Parole, 14 AD3d 949, 949 [2005]; People ex rel. Melendez v Bennett, 291 AD2d 590, 591 [2002], lv denied 98 NY2d 602 [2002]).

Mercure, J.P., Spain, Kavanagh, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs. Footnotes

Footnote 1: Supreme Court's decision included a discussion of the merits of the determination denying petitioner's request for parole release. However, petitioner is adamant that this proceeding is not an appeal from that determination and has made no arguments regarding that determination either in his petition or his brief filed with this Court. Accordingly, we offer no opinion on that matter.