| Matter of Henderson v Fischer |
| 2013 NY Slip Op 06420 [110 AD3d 1131] |
| October 3, 2013 |
| Appellate Division, Third Department |
| In the Matter of Thomas Henderson, Appellant, v BrianFischer, as Commissioner of Corrections and Community Supervision, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for BrianFisher, respondent. Stephen Pechenik, County Attorney, Troy, for Jack Mahar, respondent.
Rose, J.P. Appeal from a judgment of the Supreme Court (Breslin, J.), enteredFebruary 21, 2013 in Albany County, which dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to review a determination of respondentDepartment of Corrections and Community Supervision calculating petitioner's jail timecredit.
On June 27, 2000, petitioner was sentenced to 2½ years in prison after beingconvicted of assault in the second degree. Although required by statute, the sentencingcourt failed to impose a period of postrelease supervision (hereinafter PRS). However,the Department of Corrections and Community Supervision (hereinafter DOCCS)subsequently added a three-year period of PRS. Petitioner was released on PRS in June2002. On August 13, 2002, he was arrested and remanded to the Rensselaer County Jailon charges of assault and unlawful [*2]imprisonment,[FN*] and a PRS violation warrant was lodged against him the next day. On November 7,2002, while still in jail, petitioner was again arrested and this time charged with twocounts of forgery in the second degree. He was discharged and released from jail on May16, 2003 and thereafter returned to DOCCS custody on May 22, 2003 as a PRS violator.While in DOCCS custody, petitioner was convicted on the forgery charges and, onJanuary 9, 2004, he was sentenced to an aggregate prison term of 3½ to 7 years.Respondent Sheriff of Rensselaer County ultimately credited petitioner with 191 days ofjail time on his 2004 forgery convictions, for the time period between November 7, 2002and May 16, 2003.
In 2008, the Court of Appeals held that DOCCS lacked the authority to impose astatutorily-required period of PRS (see Matter of Garner v New York State Dept. of CorrectionalServs., 10 NY3d 358 [2008]). Petitioner was then resentenced on his 2000conviction to the originally imposed sentence of 2½ years in prison, with no termof PRS, pursuant to Penal Law § 70.85. Petitioner thereafter requested that his2004 forgery convictions be credited for the time period of May 22, 2003 to January 9,2004, representing the time he served in state prison as a result of the PRS violation.DOCCS denied the request and petitioner commenced this proceeding, arguing that sincethe Court of Appeals eventually determined that DOCCS did not have the authority toimpose the term of PRS, any violation of its conditions should be considered invalid and,therefore, his 2004 sentence on the forgery convictions should be credited for the timeperiod spent in custody on the PRS violation. Supreme Court dismissed the petition,finding no authority to credit time spent in custody as a result of a prior conviction thatdid not culminate in a dismissal or an acquittal. Petitioner appeals.
We affirm. Pursuant to Penal Law § 70.30 (3), the term of a sentence "shall becredited with and diminished by the amount of time the person spent in custody prior tothe commencement of such sentence as a result of the charge that culminated in thesentence." Here, petitioner was discharged and released from custody in the RensselaerCounty Jail on the forgery charges in May 2003 and returned to the custody of DOCCSpursuant to the PRS violation stemming from his 2000 conviction. Accordingly,petitioner was not in custody "as a result of" the forgery charges during the time forwhich he seeks a credit and, therefore, he is not entitled to a credit on his 2004conviction for that time. Moreover, although the PRS was determined to have beenimproperly imposed pursuant to Matter of Garner, that nullification of the PRSdoes not constitute "a dismissal or an acquittal" of petitioner's 2000 charges within themeaning of Penal Law § 70.30 (3) (see generally Matter of Jeffrey v Ward,44 NY2d 812, 814 [1978]).
Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: It appears that thesecharges were later dismissed.