THOMPSON, ANTWAN v. ANNUCCI, ANTHONY J. ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
137
CA 14-01689
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.
IN THE MATTER OF ANTWAN THOMPSON,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
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.
Appeal from a judgment (denominated order) of the Supreme Court,
Seneca County (Dennis F. Bender, A.J.), entered September 9, 2014 in a
proceeding pursuant to CPLR article 78. The judgment granted
petitioner’s motion for leave to reargue and, upon reargument, adhered
to the prior determination dismissing his petition.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
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 NY3d 1, 6-7, cert denied sub nom. Gill v Rock,
558 US 837). 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 Rodriquez, 145
AD2d 901, 902). 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was revoked by operation of law upon his conviction of a felony in New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-i [3] [d] [iii]; People ex rel. Williams v
Kirkpatrick, 111 AD3d 1327, 1327-1328). 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 NY2d 806,
-2- 137
CA 14-01689
807; Matter of Rodriquez v LaValley, 112 AD3d 1244, 1244-1245, appeal
dismissed 23 NY3d 933, reconsideration denied 24 NY3d 1217). Finally,
we have considered petitioner’s remaining contentions and conclude
that they are lacking in merit.
Entered: February 11, 2016 Frances E. Cafarell
Clerk of the Court