Defendant's motion to dismiss granted. Claim alleging that DOCS improperly calculated release date of second violent felony offender because it ran second sentence consecutively to first sentence failed to state a cause of action as a matter of law (see People ex rel. Gill v Greene, 12 NY3d 1, 6 ; Penal Law § 70.25 [2-a]; Matter of Williams v New York State Division of Parole, 67 AD3d 1272 [3d Dept 2009]).
|Claimant short name:||WILLIAMS|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ROBERT WILLIAMS, Pro se|
|Defendant's attorney:||ANDREW M. CUOMO, Attorney General of the State of
By: Thomas R. Monjeau, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 22, 2010|
|See also (multicaptioned case)|
This claim, filed on November 24, 2008, alleges that as of October 31, 2008 the Department of Correctional Services (DOCS) was failing to comply with a Court order allegedly directing recalculation of claimant's sentence, and was failing to conditionally release claimant from incarceration. Defendant moves to dismiss the claim for failure to state a cause of action. Claimant has not submitted opposition to the motion.
The documents submitted in support of defendant's motion demonstrate that claimant was sentenced to an indeterminate term of incarceration as a felony offender in 1983 and, upon conviction for a subsequent crime, was sentenced in 1993 as a second violent felony offender to another indeterminate term of incarceration (see Monjeau Affirmation, Exhibits E, F). DOCS calculated his release date based upon the 1993 sentence running consecutively to claimant's undischarged 1983 sentence. Claimant, seeking a writ of habeas corpus in Supreme Court, Ulster County, argued that the 1983 and 1993 sentences should have been calculated to run concurrently (see id., Exhibit G). Supreme Court converted the proceeding to one pursuant to CPLR Article 78 and held that claimant was entitled to be resentenced (id.). Claimant was released to parole supervision on May 1, 2009 (see Matter of Williams v New York State Division of Parole, 67 AD3d 1272 [3d Dept 2009]).
The apparent gravamen of the claim is that because the 1993 order of sentencing and commitment did not expressly state that the sentence was to run consecutively with claimant's 1983 sentence, DOCS should have calculated the sentences to run concurrently. As defendant contends without opposition from claimant, this position is contrary to law. The Court of Appeals has expressly held that when a second felony offender is subject to an undischarged term of incarceration that was imposed prior to the date of commission of a second crime, the indeterminate sentence imposed for the second crime runs consecutively to the first sentence as a matter of law (see People ex rel. Gill v Greene, 12 NY3d 1, 6 ; Penal Law § 70.25 [2-a]). As stated by the Appellate Division, Third Department on the cross appeals taken from Supreme Court's judgment on the proceeding in Supreme Court challenging the DOCS' sentence calculation, claimant "was sentenced as a second violent felony offender and, as such, was subject to the consecutive sentencing provisions of Penal Law § 70.25 (2-a). Where a statute mandates the imposition of a consecutive sentence, the sentencing court is deemed to have imposed the consecutive sentence the law requires - regardless of whether it so specifies" (Matter of Williams v New York State Division of Parole, supra at 1273). To the extent that the claim cites Hudson v State of New York (UID # 2008-040-020, Claim No. 114628, Motion No. M-74479, McCarthy, J. [Apr. 17, 2008]) in support of its merit, it is noted that Hudson involved an individual who was not sentenced as a predicate felon, and whose sentencing was therefore controlled by Penal Law § 70.25(1)(a), and not Penal Law § 70.25 (2-a).
Accordingly, the claim fails to state a cause of action, and it is
ORDERED, that Motion No. M-77638 is GRANTED, and Claim No. 116115 is DISMISSED.
February 22, 2010
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim No. 116115, filed November 24, 2008;
(2) Verified Answer, filed January 2, 2009;
(3) Notice of Motion, dated December 23, 2009;
(4) Affirmation in Support of Thomas R. Monjeau, AAG, dated December 23, 2009, with