People ex rel. Smith v Burge
2006 NY Slip Op 02017 [27 AD3d 1156]
March 17, 2006
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 17, 2006


The People of State of New York ex rel. Craig Smith, Appellant, v John W. Burge, as Superintendent of Auburn Correctional Facility, Respondent.

[*1]Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered January 19, 2005 in a habeas corpus proceeding. The judgment dismissed the petition.

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

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus on the ground that, pursuant to Penal Law § 70.25 (1) (a), his sentences should have been deemed to run concurrently. We conclude that Supreme Court properly dismissed the petition. Pursuant to Penal Law § 70.25 (2-a), petitioner's most recently imposed sentence was required to run consecutively to the undischarged portion of petitioner's prior sentence, despite the sentencing court's failure to address that issue on the record at sentencing. Present—Pigott, Jr., P.J., Scudder, Gorski, Martoche and Green, JJ.