IN RE: KEMET ALLAH

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

IN RE: KEMET ALLAH, FORMERLY KNOWN AS BENJAMIN LOFTON, PETITIONER-APPELLANT, v. JAMES HENDRICKS, IN HIS CAPACITY AS CHIEF CLERK, SUPREME AND COUNTY COURTS, SEVENTH JUDICIAL DISTRICT, RESPONDENT-RESPONDENT, AND MICHAEL C. GREEN, MONROE COUNTY DISTRICT ATTORNEY, INTERVENOR-RESPONDENT-RESPONDENT.

CA 09-01803

Decided: May 07, 2010

PRESENT:  CENTRA, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ. EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON OF COUNSEL), FOR PETITIONER-APPELLANT. ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT-RESPONDENT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF COUNSEL), INTERVENOR-RESPONDENT-RESPONDENT PRO SE.

MEMORANDUM AND ORDER

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

Memorandum:  Petitioner commenced this CPLR article 78 proceeding in the nature of mandamus to compel respondent Chief Clerk, Supreme and County Courts, Seventh Judicial District to issue an amended sentencing commitment form and certificate of conviction (hereafter, commitment papers) accurately indicating the new sentence imposed upon defendant's resentencing pursuant to the 2005 Drug Law Reform Act ( [DLRA-2] L 2005, ch 643, § 1).   We conclude that Supreme Court properly dismissed the petition.   Petitioner was convicted of, inter alia, criminal sale of a controlled substance in the first degree (Penal Law § 220.43[1] ) based on one criminal transaction involving the sale of cocaine to an undercover officer, and he was convicted of, inter alia, robbery in the first degree (§ 160.15[4] ) based on a subsequent criminal transaction involving the same undercover officer (People v. Lofton, 226 A.D.2d 1082, lv denied 88 N.Y.2d 938, 1022).   The sentences originally imposed on the drug charges ran concurrently with each other and consecutively to the sentences imposed on the robbery charges.   At the hearing conducted on defendant's application for resentencing on two of the drug charges pursuant to DLRA-2, County Court indicated that the new sentences imposed on those charges would run concurrently with each other, but it did not explicitly state whether they would continue to run consecutively to the sentences imposed on the robbery charges.

Petitioner contends that the commitment papers do not accurately reflect the new sentences imposed by the court inasmuch as they indicate that the new sentences are to run consecutively to the sentences imposed on the robbery charges.   Even assuming, arguendo, that the court had the authority to order that the sentences imposed on the robbery charges run concurrently with the new sentences on two of the drug charges (but see People v. Acevedo, 61 AD3d 692, 693, lv granted 12 NY3d 912), we nevertheless conclude that the extraordinary remedy of mandamus does not lie because the issue whether the commitment papers accurately reflect the new sentences imposed could have been raised on petitioner's direct appeal (see Veloz v. Rothwax, 65 N.Y.2d 902, 904;  Matter of De Jesus v. Armer, 74 A.D.2d 736;  see e.g. People v. Owens, 51 AD3d 1369, 1372-1373, lv denied 11 NY3d 740;  People v. Lamphier, 302 A.D.2d 864, 865, lv denied 99 N.Y.2d 656).

Patricia L. Morgan

Clerk of the Court