IN RE ETTARI, 13 N.Y.3d 850 (2009)

919 N.E.2d 179, 891 N.Y.S.2d 8

In the Matter of ANTHONY ETTARI, Respondent, v. BRIAN FISCHER, as Commissioner of Correctional Services, et al., Appellants.

No. 210 SSM 41.Court of Appeals of the State of New York.
Decided November 23, 2009.

APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered August 7, 2008. The Appellate Division (1) reversed, on the law, a judgment of the Supreme Court, Albany County (Mary O. Donohue, J.), entered in a proceeding pursuant to CPLR article 78, which had dismissed an application to review a determination of the Department of Correctional Services calculating petitioner’s prison sentence, and (2) remitted the matter to the Department of Correctional Services for further proceedings.

The Appellate Division concluded that the Department of Correctional Services had no authority to calculate petitioner’s prison sentences as running consecutively to previously imposed sentences where the sentencing court was silent on the issue.

Matter of Ettari v Fischer, 54 AD3d 460, reversed.

Page 851

Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold, Barbara D. Underwood and Denise A. Hartman of counsel), for appellants.

Anthony Ettari, respondent pro se.

Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.

OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, without costs, and petition dismissed (see People ex rel. Gill v Greene, 12 NY3d 1 [2009]).