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In the Matter of Hannig v. McCoy

Appellate Division of the Supreme Court of New York, Third Department
Feb 26, 2004
4 A.D.3d 685 (N.Y. App. Div. 2004)

Opinion

92858.

Decided and Entered February 26, 2004.

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered July 3, 2002 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services calculating the length of petitioner's term of imprisonment.

Michael Hannig, Moravia, appellant pro se.

Eliot Spitzer, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondents.

Before Crew III, J.P., Peters, Spain, Carpinello and Mugglin, JJ.


MEMORANDUM AND ORDER

In 1997, petitioner was sentenced to two consecutive prison terms of 3½ to 7 years and 1 to 4 years for his convictions of criminal sale of a controlled substance in the fifth degree and driving while intoxicated, respectively. The sentences were added to produce an aggregate sentence of 4 5/6 to 11 years. Petitioner commenced this CPLR article 78 proceeding challenging the calculation of his sentence. By judgment dated June 26, 2002 and entered July 3, 2002, Supreme Court dismissed the petition finding that the Department of Correctional Services correctly calculated petitioner's minimum period of imprisonment by aggregating the minima two consecutive sentences. Petitioner's subsequent motion for reconsideration was denied on September 26, 2002. Thereafter, petitioner commenced this appeal.

Petitioner's appeal must be dismissed as untimely. On July 8, 2002, petitioner was served with Supreme Court's judgment entered July 3, 2002. Petitioner had 35 days from being served in which to file an appeal ( see CPLR 5513 [a]; 2103 [b] [2]; [c]), however, the notice of appeal before this Court was not filed until October 15, 2002. Inasmuch as "[t]he statutory requirements regarding the time in which to bring an appeal are jurisdictional in nature and must be strictly adhered to" ( Suarez v. State of New York, 193 A.D.2d 1037, 1037), petitioner's appeal must be dismissed ( see Matter of Gaines v. Coughlin, 236 A.D.2d 648, 649; Matter of Johnson v. Coombe, 236 A.D.2d 669). Furthermore, petitioner's motion for reargument, which was denied on September 26, 2002, cannot be deemed as extending the time to file an appeal ( see Matter of Barnes [Council 82, AFSCME], 235 A.D.2d 826).

Crew III, J.P., Peters, Spain, Carpinello and Mugglin, JJ., concur.

ORDERED that the appeal is dismissed, without costs.


Summaries of

In the Matter of Hannig v. McCoy

Appellate Division of the Supreme Court of New York, Third Department
Feb 26, 2004
4 A.D.3d 685 (N.Y. App. Div. 2004)
Case details for

In the Matter of Hannig v. McCoy

Case Details

Full title:IN THE MATTER OF MICHAEL HANNIG, Appellant, v. JOSEPH E. McCOY, AS…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Feb 26, 2004

Citations

4 A.D.3d 685 (N.Y. App. Div. 2004)
771 N.Y.S.2d 922

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