Opinion
2012-02-2
In the Matter of Michael THOMPSON, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.
Michael Thompson, Malone, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Michael Thompson, Malone, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
Before: MERCURE, Acting P.J., ROSE, SPAIN, MALONE JR. and McCARTHY, JJ.
SPAIN, J.
Appeal from a judgment of the Supreme Court (Devine, J.), entered June 16, 2011 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 calculating the length of petitioner's prison sentence.
In 1981, petitioner was convicted of numerous crimes, including, as relevant herein, two counts of murder in the second degree and one count of robbery in the first degree, which were affirmed on appeal ( People v. Thompson, 156 A.D.2d 961, 550 N.Y.S.2d 757 [1989] ). Upon those convictions, petitioner was sentenced to two consecutive prison terms of 25 years to life on the murder counts, along with a concurrent sentence of 8 1/3 to 25 years on the robbery count. The Department of Corrections and Community Supervision determined that petitioner would accordingly serve an aggregate prison term of 50 years to life. Petitioner's challenge to this administrative sentencing calculation was unsuccessful, and he thereafter commenced this CPLR article 78 proceeding asserting, among other things, that the minimum sentences for the two murder counts should have been recalculated so that they ran concurrently. Supreme Court dismissed the proceeding on the merits, prompting this appeal.
We affirm. At the outset, we note that petitioner has abandoned his challenge to the calculation to his minimum term of imprisonment by failing to raise it in his brief to this Court ( see Matter of Jones v. Fischer, 84 A.D.3d 1604, 1605, 922 N.Y.S.2d 879 [2011] ). Instead, the sole contention advanced by petitioner is his request that his sentence be reduced pursuant to CPL 470.15. However, as this Court has previously noted, such a request for a sentence to be reduced in the interest of justice is beyond the scope of a CPLR article 78 proceeding ( see Matter of Pride v. Goord, 285 A.D.2d 766, 767, 728 N.Y.S.2d 565 [2001]; Matter of Flowers v. Miller, 284 A.D.2d 618, 619, 726 N.Y.S.2d 171 [2001]; compare People v. Mead, 53 A.D.3d 927, 928, 861 N.Y.S.2d 540 [2008], lv. denied 11 N.Y.3d 834, 868 N.Y.S.2d 608, 897 N.E.2d 1092 [2008] ).
ORDERED that the judgment is affirmed, without costs.