Opinion
2012-02-9
In the Matter of Gregory MINGO, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Gregory Mingo, Comstock, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Gregory Mingo, Comstock, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Devine, J.), entered March 14, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent calculating the length of petitioner's prison sentence.
In 1983, petitioner was convicted of, among other things, four separate counts of murder in the second degree and was sentenced to 25 years to life in prison on each count. The trial court directed that the sentences on two of the murder convictions were to run consecutively to each other, with all other sentences running concurrently, resulting in an aggregate sentence of 50 years to life in prison. In 2010, petitioner commenced this CPLR article 78 proceeding alleging that the computation of his sentence was erroneous because it did not comply with Penal Law § 70.25(1). Supreme Court dismissed the petition both as barred by collateral estoppel and on the merits. This appeal ensued.
Previously, in 2007, petitioner challenged the computation of his sentence on a different ground, claiming that it was impossible for him to serve consecutive life sentences and, therefore, the maximum and minimum terms of the sentences should have been ordered to run concurrently ( Matter of Mingo v. Annucci, 49 A.D.3d 1106, 1106, 853 N.Y.S.2d 739 [2008], lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 598, 897 N.E.2d 1082 [2008] ). This Court disagreed, ruling that petitioner's contentions were without merit and his sentence was properly calculated pursuant to Penal Law former § 70.30 ( id.).
We affirm on the merits. Petitioner concedes that the trial court ordered his sentences on counts 1 and 2 to run consecutively. Nevertheless, he argues that because the court allegedly did not specify how the sentences on counts 3 and 4 were to run in relation to counts 1 and 2, all sentences should run concurrently pursuant to Penal Law § 70.25(1)(a). We disagree. Even assuming, arguendo, that the sentencing court did not sufficiently specify whether counts 3 and 4 were to run concurrently or consecutively to counts 1 and 2, this would not affect the court's specific direction that counts 1 and 2 are to run consecutively to each other ( see Penal Law § 70.25[1][a] ).
To the extent that petitioner further claims that a discrepancy exists between the sentencing minutes and the commitment order, that argument must be raised before the sentencing court ( see Matter of Reed v. Fischer, 79 A.D.3d 1517, 1518, 912 N.Y.S.2d 468 [2010] ).
ORDERED that the judgment is affirmed, without costs.