IN RE: Victor SANTIAGO

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

IN RE: Victor SANTIAGO, Appellant, v. Richard J. VAN ZANDT, as Superintendent of Washington Correctional Facility, Respondent.

Decided: February 20, 1997

Before MIKOLL, J.P., and MERCURE, YESAWICH, PETERS and CARPINELLO, JJ. Victor Santiago, Napanoch, in person. Dennis C. Vacco, Attorney General (Denise A. Hartman, of counsel), Albany, for respondent.

Appeal from a judgment of the Supreme Court (Berke, J.), entered July 3, 1996 in Washington County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review respondent's determination calculating the length of petitioner's sentence.

Petitioner was convicted in 1986 of the crime of manslaughter in the first degree and was sentenced to a prison term of 41/212 to 131/212 years.   In January 1995, before the expiration of his 1986 sentence, petitioner was convicted of the crime of attempted criminal sale of a controlled substance in the third degree and sentenced as a second felony offender to a prison term of 3 to 6 years.

Petitioner contends that, pursuant to Penal Law § 70.25(1)(a), the 1995 sentence should have been construed as running concurrently with the remaining years on his undischarged sentence imposed in 1986, rather than consecutively thereto, since Supreme Court was silent on this issue.  Penal Law § 70.25(2-a) mandates that the sentence imposed upon petitioner in 1995 is to be served consecutively to petitioner's unexpired sentence (see, Matter of Jackson v. Wolford, 232 A.D.2d 795, 796, 649 N.Y.S.2d 59, 60;  Matter of Rolon v. Senkowski, 160 A.D.2d 1072, 553 N.Y.S.2d 551, appeal dismissed 76 N.Y.2d 772, 559 N.Y.S.2d 985, 559 N.E.2d 679).   Hence, there was no need for the court to make an express provision that the newly imposed sentence run consecutive to petitioner's 1986 undischarged sentence.

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.

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