State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: August 7, 2014 510460 

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In the Matter of ROBERT MOORE,

Also Known as SAADA SPIVEY,

Appellant,

v MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF

CORRECTIONS AND COMMUNITY

SUPERVISION,

Respondent.

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Calendar Date: June 9, 2014

Before: McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ.

__________

Robert Moore, Rahway, New Jersey, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J.

Mastracco of counsel), for respondent.

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Appeal from a judgment of the Supreme Court (Gilpatric,

J.), entered August 13, 2010 in Albany County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to compel respondent to recalculate his sentence.

In 1986, petitioner was convicted of murder in New Jersey

and was sentenced to 30 years in prison. In 1987, while serving

this sentence, petitioner was temporarily transferred to New York

to face charges pursuant to the Interstate Agreement on Detainers

Act (see 18 USC Appendix 2, § 2 [hereinafter IAD]; CPL 580.20). 

He was thereafter convicted of murder in New York and sentenced

to a prison term of 25 years to life on November 9, 1987, with

the sentence to run consecutively to the New Jersey sentence. 

Following imposition of the New York sentence, petitioner was
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initially sent to respondent on November 13, 1987, apparently due

to an error by an employee of the New York City Department of

Corrections. Upon discovery of the error, he was returned to New

Jersey on December 3, 1987 to complete his sentence there

pursuant to the terms of the IAD. In 2010, petitioner commenced

this CPLR article 78 proceeding seeking to compel respondent to

recalculate his sentence to one that runs concurrently with the

New Jersey sentence. Supreme Court dismissed the petition,

prompting this appeal.

Petitioner contends that his New York sentence should run

concurrently with the New Jersey sentence due to the fact that

respondent initially received him following the imposition of his

New York sentence, in violation of the IAD. We disagree. 

Pursuant to the IAD, New York was provided only temporary custody

of petitioner in order to prosecute him on the murder charge (see

CPL 580.20, art V [a]). Following prosecution, New York was

required to return petitioner to New Jersey "at the earliest

practicable time consonant with the purposes of [the IAD]" (CPL

580.20, art V [e]). The IAD does not require an immediate return

and, in our view, the modest delay here was neither impracticable

nor contrary to the purpose of the IAD.

We also reject petitioner's contention that his sentences

should be ordered to run concurrently due to his belief that his

New York sentence commenced in 1987, when he was erroneously

received by respondent and, once commenced, it could not be

interrupted (see CPL 430.10). Petitioner had not been discharged

from the New Jersey sentence in 1987. Thus, his consecutive New

York sentence could not have commenced at that time (see Penal

Law § 70.30 [2-a]; Matter of Mokone v Coughlin, 157 AD2d 621, 622

[1990], lv denied 75 NY2d 711 [1990]), nor did respondent have

the authority to change a sentence legally imposed by a court

(see Matter of Hill v Commissioner of Correctional Servs. 71 AD3d

1210, 1211 [2010]).

McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ., concur.
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ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court