Summary
rejecting claim in an Article 78 proceeding that DOCS miscalculated petitioner's sentence and rejecting as procedurally improper petitioner's challenge to his 1986 conviction
Summary of this case from Thompson v. LamannaOpinion
137 CA 14-01689.
02-11-2016
In the Matter of Antwan THOMPSON, Petitioner–Appellant, v. Anthony J. ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent. (Appeal No. 2).
Antwan Thompson, Petitioner–Appellant Pro Se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent–Respondent.
Antwan Thompson, Petitioner–Appellant Pro Se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent–Respondent.
Opinion
MEMORANDUM:
Petitioner commenced this proceeding pursuant to CPLR article 78 alleging, inter alia, that respondent erroneously calculated his sentence. We conclude that Supreme Court properly dismissed the petition. Contrary to petitioner's contention, respondent correctly calculated petitioner's sentence to reflect that, pursuant to Penal Law § 70.25(2–a), the sentence imposed in 2013 runs consecutively to the sentences imposed in 1983 and 1986 (see People ex rel. Gill v. Greene, 12 N.Y.3d 1, 6–7, 875 N.Y.S.2d 826, 903 N.E.2d 1146, cert. denied sub nom. Gill v. Rock, 558 U.S. 837, 130 S.Ct. 86, 175 L.Ed.2d 59). Petitioner's date of delinquency was properly determined to be the date of commission of the earliest of the four felonies that resulted in his 2013 conviction (see Matter of Warley v. Rodriguez, 145 A.D.2d 901, 902, 536 N.Y.S.2d 282). We reject petitioner's contention that he was denied his right to a final parole revocation hearing inasmuch as his parole was revoked by operation of law upon his conviction of a felony in New York and the imposition of an indeterminate term of incarceration (see Executive Law § 259–i3[d][iii]; People ex rel. Williams v. Kirkpatrick, 111 A.D.3d 1327, 1327–1328, 974 N.Y.S.2d 739). Petitioner's challenges to the validity of the underlying 1986 conviction are not properly before us inasmuch as an article 78 proceeding is not the appropriate vehicle for those challenges (see Matter of Hennessy v. Gorman, 58 N.Y.2d 806, 807, 459 N.Y.S.2d 261, 445 N.E.2d 644; Matter of Rodriguez v. LaValley, 112 A.D.3d 1244, 1244–1245, 976 N.Y.S.2d 897, appeal dismissed 23 N.Y.3d 933, 986 N.Y.S.2d 876, 10 N.E.3d 185, reconsideration denied 24 N.Y.3d 1217, 4 N.Y.S.3d 598, 28 N.E.3d 34). Finally, we have considered petitioner's remaining contentions and conclude that they are lacking in merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.