PEOPLE SMITH v. BURGE (2006)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York ex rel. Craig SMITH, Petitioner-Appellant, v. John W. BURGE, Superintendent, Auburn Correctional Facility, Respondent-Respondent.

Decided: March 17, 2006

PRESENT: PIGOTT, JR., P.J., SCUDDER, GORSKI, MARTOCHE, AND GREEN, JJ.

Charles A. Marangola, Moravia, for Petitioner-Appellant. Eliot Spitzer, Attorney General, Albany (Julie S. Mereson of Counsel), for Respondent-Respondent.

Petitioner commenced this proceeding seeking a writ of habeas corpus on the ground that, pursuant to Penal Law § 70.25(1)(a), his sentences should have been deemed to run concurrently. We conclude that Supreme Court properly dismissed the petition. Pursuant to Penal Law § 70.25(2-a), petitioner's most recently imposed sentence was required to run consecutively to the undischarged portion of petitioner's prior sentence, despite the sentencing court's failure to address that issue on the record at sentencing.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM:

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