Opinion
2013-11-7
In the Matter of Robert McCULLAUGH, Appellant, v. Richard DeSIMONE, as Associate Counsel for the Department of Corrections and Community Supervision, Respondent.
Robert McCullough, Elmira, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Robert McCullough, Elmira, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Teresi, J.), entered in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Corrections and Community Supervision calculating the length of petitioner's prison sentence.
In October 1998, petitioner was sentenced upon his conviction of the crimes of criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the third degree. Petitioner's judgment of conviction was affirmed on direct appeal ( People v. McCullough, 283 A.D.2d 988, 724 N.Y.S.2d 666 [2001],lv. denied96 N.Y.2d 941, 733 N.Y.S.2d 381, 759 N.E.2d 380 [2001] ). In calculating the length of petitioner's sentence, the Department of Corrections and Community Supervision utilized consecutive prison terms of 7 1/2 to 15 years for each of the convictions of criminal possession of a weapon in the second degree and a concurrent prison term of 3 1/2 to 7 years for the conviction of criminal possession of a weapon in the third degree, as set forth in the sentence and commitment order. Petitioner thereafter commenced this proceeding, arguing that the consecutive sentences set forth in the sentence and commitment order are inconsistent with the sentence pronounced by the sentencing court. Supreme Court dismissed petitioner's application, and this appeal ensued.
The Department of Corrections and Community Supervision is “conclusively bound” by the terms of the sentence and commitment order and, in this case, there is no dispute that its calculation of petitioner's sentence is consistent therewith ( Middleton v. State of New York, 54 A.D.2d 450, 452, 389 N.Y.S.2d 159 [1976],affd.43 N.Y.2d 678, 401 N.Y.S.2d 65, 371 N.E.2d 827 [1977];see Matter of He'ron v. Department of Corr. Servs., 100 A.D.3d 1166, 1167, 953 N.Y.S.2d 733 [2012],lv. denied20 N.Y.3d 858, 2013 WL 452279 [2013];see also Matter of Reed v. Fischer, 79 A.D.3d 1517, 1518, 912 N.Y.S.2d 468 [2010] ). Petitioner's claim that the sentence and commitment order is not consistent with the sentencing court's intention must be pursued through appropriate proceedings before that court ( see Matter of Mingo v. Fischer, 92 A.D.3d 1051, 1052, 937 N.Y.S.2d 899 [2012],lv. denied19 N.Y.3d 801, 2012 WL 1504382 [2012];People v. Gibson, 278 A.D.2d 669, 670, 717 N.Y.S.2d 738 [2000];see generally People ex rel. McLeod v. New York State Div. of Parole, 193 A.D.2d 942, 944, 597 N.Y.S.2d 789 [1993],lv. denied82 N.Y.2d 655, 602 N.Y.S.2d 804, 622 N.E.2d 305 [1993] ). Accordingly, we affirm.
ORDERED that the judgment is affirmed, without costs.