PEOPLE WASHINGTON v. BURGE (2006)

 Petitioner commenced this habeas corpus proceeding in Supreme Court, Cayuga County, seeking his immediate release on the ground that the jail time that he served on his 1977 conviction should be credited toward his 1997 sentence.   The court properly dismissed the petition.   The 1997 sentence was imposed following a hearing at which petitioner was determined to be a second violent felony offender, and the judgment of conviction was affirmed (People v. Washington, 282 A.D.2d 375, 375-376, 726 N.Y.S.2d 5, lv. denied 96 N.Y.2d 925, 732 N.Y.S.2d 643, 758 N.E.2d 669).   Contrary to the contention of petitioner, “[p]ursuant to Penal Law § 70.25(2-a), [the] most recently imposed sentence was required to run consecutively to the undischarged portion of [his] prior sentence, despite the sentencing court's failure to address that issue on the record at sentencing” (People ex rel. Smith v. Burge, 27 A.D.3d 1156, 1156, 811 N.Y.S.2d 844;  see People v. Fucci, 16 A.D.3d 597, 790 N.Y.S.2d 891, lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 809, 835 N.E.2d 669;   Matter of Jackson v. Wolford, 232 A.D.2d 795, 649 N.Y.S.2d 59, lv. denied 89 N.Y.2d 806, 654 N.Y.S.2d 716, 677 N.E.2d 288).   Petitioner therefore was not entitled to immediate release.

 We reject petitioner's further contention that the court should have converted the proceeding to one pursuant to CPLR article 78 and then reviewed the propriety of the issuance of the second amended commitment by Supreme Court, New York County.   A CPLR article 78 proceeding against “a justice of the supreme court ․ shall be commenced in the appellate division in the judicial department where the [proceeding], in the course of which the matter sought to be enforced or restrained originated, is triable” (CPLR 506[b][1];  see Matter of Baba v. Evans, 213 A.D.2d 248, 624 N.Y.S.2d 18, cert. denied 520 U.S. 1254, 117 S.Ct. 2416, 138 L.Ed.2d 180;  cf. Matter of Kimyagarova v. Spitzer, 16 A.D.3d 507, 791 N.Y.S.2d 610).   Supreme Court, Cayuga County, thus properly refused to convert the proceeding to a CPLR article 78 petition because such a proceeding was required to be commenced in the Appellate Division, First Department (see Baba, 213 A.D.2d 248, 624 N.Y.S.2d 18).

We have considered petitioner's further contentions and conclude that they are without merit.

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

MEMORANDUM: