People ex rel. Batista v. Walsh

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered August 16, 2006 in Sullivan County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner commenced this habeas corpus proceeding on the ground that the Department of Correctional Services improperly calculated his sentence and, as a result, he is being illegally detained beyond the expiration of the maximum term of his sentence. Concluding that petitioner’s sentence was properly calculated, Supreme Court dismissed the petition, prompting this appeal. We affirm. In 1987, petitioner was sentenced as a second felony offender to two concurrent prison terms of 21k to 5 years. Thereafter, while on parole, petitioner committed additional crimes and, in 1993, was convicted of four counts of robbery in the first degree. Petitioner was then sentenced as a second felony offender to four concurrent prison terms of 12V2 to 25 years. Although the sentencing court failed to indicate whether said sentences were to run concurrently or consecutively to his prior undischarged sentence, because petitioner was sentenced as a second felony offender, by operation of law they must be consecutive (see Penal Law §§ 70.06, 70.25 [2-a]; Matter of Williams v Goord, 25 AD3d 838, 838 [2006], lv denied 7 NY3d 701 [2006]). Accordingly, Supreme Court properly dismissed the petition. Petitioner’s remaining arguments have been considered and found to be lacking in merit. Mercure, J.P., Spain, Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment is affirmed, without costs.