IN RE: Elroy HENDRIX

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

IN RE: Elroy HENDRIX, Appellant, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: January 25, 2007

Before:  CREW III, J.P., PETERS, SPAIN, CARPINELLO and MUGGLIN, JJ. Elroy Hendrix, Elmira, appellant pro se.

Appeal from a judgment of the Supreme Court (O'Brien III, J.), entered September 28, 2005 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent computing his prison sentence.

After serving 12 years of concurrent 9 to 18-year prison sentences imposed in connection with his 1986 conviction of robbery in the first degree and burglary in the first degree, petitioner was released to parole supervision.   He was subsequently rearrested and convicted of additional crimes resulting in his incarceration as a persistent violent felony offender to a sentence of 25 years to life in prison.   Dissatisfied with the manner in which the Department of Correctional Services computed his new sentence, which it determined would run consecutive to his prior undischarged prison term, petitioner commenced this CPLR article 78 proceeding.   Supreme Court dismissed the petition and this appeal ensued.

We agree with Supreme Court that inasmuch as petitioner was sentenced as a persistent violent felony offender under Penal Law § 70.08, it was mandatory that the new sentence run consecutive to the undischarged term of imprisonment remaining on petitioner's prior sentences (see Penal Law § 70.25[2-a];  Matter of Valentin v. Smith, 30 A.D.3d 862, 863, 817 N.Y.S.2d 717 [2006], lv. denied 7 N.Y.3d 717, 827 N.Y.S.2d 687, 860 N.E.2d 989 [Dec. 14, 2006] ).   Therefore, the petition was properly dismissed.

ORDERED that the judgment is affirmed, without costs.

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