                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 7, 2014                    510460
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In the Matter of ROBERT MOORE,
   Also Known as SAADA SPIVEY,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION,
                    Respondent.
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Calendar Date:   June 9, 2014

Before:   McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ.

                             __________


     Robert Moore, Rahway, New Jersey, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (Gilpatric,
J.), entered August 13, 2010 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to compel respondent to recalculate his sentence.

      In 1986, petitioner was convicted of murder in New Jersey
and was sentenced to 30 years in prison. In 1987, while serving
this sentence, petitioner was temporarily transferred to New York
to face charges pursuant to the Interstate Agreement on Detainers
Act (see 18 USC Appendix 2, § 2 [hereinafter IAD]; CPL 580.20).
He was thereafter convicted of murder in New York and sentenced
to a prison term of 25 years to life on November 9, 1987, with
the sentence to run consecutively to the New Jersey sentence.
Following imposition of the New York sentence, petitioner was
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initially sent to respondent on November 13, 1987, apparently due
to an error by an employee of the New York City Department of
Corrections. Upon discovery of the error, he was returned to New
Jersey on December 3, 1987 to complete his sentence there
pursuant to the terms of the IAD. In 2010, petitioner commenced
this CPLR article 78 proceeding seeking to compel respondent to
recalculate his sentence to one that runs concurrently with the
New Jersey sentence. Supreme Court dismissed the petition,
prompting this appeal.

      Petitioner contends that his New York sentence should run
concurrently with the New Jersey sentence due to the fact that
respondent initially received him following the imposition of his
New York sentence, in violation of the IAD. We disagree.
Pursuant to the IAD, New York was provided only temporary custody
of petitioner in order to prosecute him on the murder charge (see
CPL 580.20, art V [a]). Following prosecution, New York was
required to return petitioner to New Jersey "at the earliest
practicable time consonant with the purposes of [the IAD]" (CPL
580.20, art V [e]). The IAD does not require an immediate return
and, in our view, the modest delay here was neither impracticable
nor contrary to the purpose of the IAD.

      We also reject petitioner's contention that his sentences
should be ordered to run concurrently due to his belief that his
New York sentence commenced in 1987, when he was erroneously
received by respondent and, once commenced, it could not be
interrupted (see CPL 430.10). Petitioner had not been discharged
from the New Jersey sentence in 1987. Thus, his consecutive New
York sentence could not have commenced at that time (see Penal
Law § 70.30 [2-a]; Matter of Mokone v Coughlin, 157 AD2d 621, 622
[1990], lv denied 75 NY2d 711 [1990]), nor did respondent have
the authority to change a sentence legally imposed by a court
(see Matter of Hill v Commissioner of Correctional Servs. 71 AD3d
1210, 1211 [2010]).

     McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ., concur.
                        -3-                  510460

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
