                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: September 15, 2016                     522094
________________________________

In the Matter of THOMAS SMITH,
                    Appellant,
      v
                                              MEMORANDUM AND ORDER
TINA STANFORD, as Chair of the
   New York State Board of
   Parole, et al.,
                    Respondents.
________________________________


Calendar Date:     August 8, 2016

Before:     Peters, P.J., Garry, Rose, Clark and Aarons, JJ.

                               __________


         Thomas Smith, Malone, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Brian D.
Ginsberg of counsel), for respondents.

                               __________


      Appeal from a judgment of the Supreme Court (Hard, J.),
entered October 6, 2015 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 executing sentences imposed
upon petitioner.

      On November 24, 2010, petitioner was sentenced as a second
felony offender to a prison term of 2½ to 5 years upon his
conviction of robbery in the third degree.1 He was released to


     1
        At the time that the 2010 sentence was imposed, he had
completed his prison sentence on a 2006 conviction and was
released to postrelease supervision, the terms of which he
                              -2-                522094

postrelease supervision in June 2013, but was declared delinquent
in July 2013 and returned to the custody of the Department of
Corrections and Community Supervision (hereinafter DOCCS) on a
detainer warrant. Following a final revocation hearing in August
2013, he was found to have violated the terms of his release and
he remained in custody. On March 24, 2014, petitioner was
sentenced upon his conviction of two crimes that occurred in July
2013 while he was on release. Specifically, he was convicted of
robbery in the third degree and attempted robbery in the third
degree and was sentenced as a second felony offender to
respective prison terms of 3½ to 7 years and 2 to 4 years, to run
concurrently to each other. Following the expiration of the
undischarged portion of his 2010 sentence, DOCCS executed the
2014 sentences under which petitioner is currently incarcerated.

      Petitioner brought this application, which he denominated a
"verified petition for habeas corpus relief," challenging DOCCS's
execution of his 2014 sentences. Following service of
respondents' answer, Supreme Court treated the application as a
CPLR article 78 proceeding and dismissed the petition.
Petitioner now appeals.

      Petitioner contends, among other things, that he is being
illegally held pursuant to an expired detainer warrant, inasmuch
as DOCCS did not have a valid uniform sentence and commitment
order in its possession when it began executing the 2014
sentences. There is, however, no support in the record for
petitioner's claim. After petitioner was returned to DOCCS's
custody following his August 2013 violation, the maximum
expiration date of his 2010 sentence was adjusted to March 28,
2015. DOCCS could not have started executing the 2014 sentences
until after this date had passed. Notably, the uniform sentence
and commitment order governing the 2014 sentences was issued on
March 24, 2014, an entire year earlier. Therefore, we find
petitioner's argument to be unpersuasive.

      Petitioner further asserts that DOCCS erred in treating the
2014 sentences as running consecutively to the undischarged


violated.
                              -3-                  522094

portion of the 2010 sentence. However, inasmuch as petitioner
was sentenced as a second felony offender on the 2014 convictions
and was still subject to an undischarged term of imprisonment on
the 2010 conviction, the 2014 sentences were required by statute
to run consecutively to the undischarged sentence (see Penal Law
§ 70.25 [2-a]; People ex rel. Gill v Greene, 12 NY3d 1, 5-7
[2009], cert denied sub nom. Gill v Rock, 558 US 837 [2009]).
Therefore, DOCCS properly executed the 2014 sentences.
Petitioner's remaining arguments, to the extent that they are
properly before us, have been considered and are unavailing.

     Peters, P.J., Garry, Rose, Clark and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
