IN RE: Gregory MINGO (2008)

Appeal from a judgment of the Supreme Court (Stein, J.), entered May 30, 2007 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services denying petitioner's request for a recalculation of his sentence.

In 1983, petitioner was sentenced to 25 years to life in prison on each of four counts of murder in the second degree, 12 1/212 to 25 years for robbery in the first degree, 12 1/212 to 25 years for burglary in the first degree and 2 1/212 to 7 years for criminal possession of a weapon in the second degree.   Two of the sentences for the murder convictions were set to run consecutively, with all other sentences running concurrently, for an aggregate prison term of 50 years to life.   After exhausting his administrative remedies, petitioner commenced this CPLR article 78 proceeding challenging his sentence, arguing that, since a person has only one life, consecutive life sentences can be served only concurrently and, as such, the minimum period should be recalculated to run concurrently as well.   Supreme Court dismissed the petition, prompting this appeal.

 Contrary to petitioner's contentions, there is no provision of the Penal Law that prohibits the imposition of consecutive life sentences (see e.g. Roballo v. Smith, 63 N.Y.2d 485, 483 N.Y.S.2d 178, 472 N.E.2d 1006 [1984] ).   The Department of Correctional Services properly calculated petitioner's sentence pursuant to Penal Law former § 70.30, as it read at the time of petitioner's sentencing.   Pursuant to that provision, when sentences are set to run consecutively, the minimum periods are added to arrive at the aggregate minimum-which, here, is 50 years-and the maximum periods are added to arrive at the aggregate maximum-which, here, is life (see Penal Law former § 70.30[1][b] ).¹

Petitioner's remaining contentions regarding the constitutionality of the statute were not raised in the petition and, thus, have not been preserved for this Court's review (see Matter of Killeen v. Travis, 291 A.D.2d 600, 601, 736 N.Y.S.2d 917 [2002];  Matter of White v. Goord, 278 A.D.2d 694, 694, 718 N.Y.S.2d 237 [2002] ).

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   Petitioner concedes that the sentence limitations enumerated in Penal Law former § 70.30(1)(c) and (d) are inapplicable to him.