| Matter of Hall v LaValley |
| 2014 NY Slip Op 02115 [115 AD3d 1125] |
| March 27, 2014 |
| Appellate Division, Third Department |
| In the Matter of Timothy B. Hall, Appellant, v ThomasLaValley, as Superintendent of Clinton Correctional Facility, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondents.
Lahtinen, J.P. Appeal from a judgment of the Supreme Court (Pulver Jr., J.), enteredDecember 4, 2012 in Greene County, which dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to review a determination of the Department ofCorrections and Community Supervision computing petitioner's jail time credit.
While on supervised release from federal prison, petitioner was arrested and held onstate charges in Greene County in February 2009. A federal warrant for violating hisfederal supervised release followed in March 2009. He negotiated a plea regarding thestate charges whereby he would plead guilty to one count of burglary in the first degreeand receive a sentence of 8½ years in prison followed by five years of postreleasesupervision. At the time the plea was taken, it was made clear that, in the eventsentencing on the federal charge occurred first, the state sentence would run concurrentlywith the federal sentence. The federal sentencing, however, did not occur first and, atstate sentencing, petitioner's request to delay the state sentencing until after the federalsentencing—scheduled to occur the next month—was denied.
The next month, in March 2010, petitioner was sentenced to 36 months on thefederal [*2]charges. Significantly, the federal courtexpressly directed that this sentence run concurrently with petitioner's recently receivedstate sentence. However, by the time of sentencing, the federal court had obtainedprimary jurisdiction[FN*]and no arrangement was made for petitioner to reside in a state prison while serving hisfederal sentence. Under such circumstances, when he was received into the state systemin November 2011, the Department of Corrections and Community Supervision refusedto give him credit toward his state time for the time he had just spent in federal prison.He commenced this CPLR article 78 proceeding seeking credit for the approximately 20months spent in federal prison. Supreme Court dismissed the petition and this appealfollowed.
Issues involving sentencing by dual sovereigns are generally considered under thedoctrine of primary jurisdiction and occasionally give rise to complexities (seegenerally Cozine v Crabtree, 15 F Supp 2d 997 [1998]; Shumate v UnitedStates, 893 F Supp 137 [1995]; Comment, Too Many Cooks Spoil The Sentence:Fragmentation of Authority in Federal and State Sentencing Schemes, 41 Seton HallL Rev 1637 [2011]). We do not need to engage in an extended discussion of theintricacies of primary jurisdiction and sentencing by dual sovereigns in this case.Succinctly stated, "[j]ust as the dual sovereignty doctrine acknowledges and protects therights of each sovereign to exact as much punishment for a crime as thatsovereign desires, the doctrine also acknowledges and protects the rights of eachsovereign to exact as little punishment for the crime as that sovereign desires"(Cozine v Crabtree, 15 F Supp 2d at 1010). Here, it is clear that bothsovereigns intended the state and federal sentences to run concurrently. To run thesentences sequentially essentially because of the manner in which they were administereddespite express intent otherwise by both sovereigns is analogous to a governmental entityother than the court lengthening a sentence, which this state does not permit (see generally Matter of Garner vNew York State Dept. of Correctional Servs., 10 NY3d 358, 362-363 [2008]).
Garry and Rose, JJ., concur.
McCarthy, J. (dissenting). I respectfully dissent. Inasmuch as respondents compliedwith the law regarding the proper calculation of credit toward petitioner's state criminalsentence for the time that he spent in federal prison, the judgment should be affirmed.
Petitioner, a prison inmate, challenges the computation of certain jail time credit hereceived. During a period of supervised release following his release from federal prisonin 2006, petitioner was arrested in February 2009 and charged with committingnumerous crimes in Greene County. While incarcerated in the Greene County jail as aresult of these pending charges, a federal warrant was lodged against petitioner in March2009 alleging a violation of his federal supervised release. In November 2009, petitionerappeared in County Court and pleaded guilty to burglary in the first degree. Pursuant tothe plea agreement, it was agreed that petitioner would receive a sentence of 8½years in prison, followed by five years of postrelease supervision. [*3]Sentencing was scheduled at that time for February 23,2010, and the court specifically stated that if a federal sentence was imposed pursuant tothe federal detainer warrant prior to that sentencing date, the court would imposethe state sentence to run concurrently with the federal sentence. However, the court alsostated that it would not postpone sentencing in the event that the federal matter was notconcluded by the time of the next appearance. In December 2009, the court releasedpetitioner on his own recognizance, subject to the federal detainer warrant, and he wasthereafter placed in federal custody at the Albany County jail.
County Court issued a writ of production directing the federal authorities tosurrender petitioner to the State Police on February 23, 2010 for the purpose of transportto Greene County for sentencing, after which he was to be returned to federal custody. Atthe scheduled sentencing, County Court denied petitioner's request for an adjournmentuntil after the federal sentence was imposed, and sentenced him in accordance with theplea agreement (People vHall, 89 AD3d 1323 [2011]). Petitioner was then returned to the federalauthorities and, in March 2010, he was sentenced in federal court to a 36-month term ofimprisonment for violation of the terms of his supervised release. Although the federalcourt stated that the term of imprisonment was to run "concurrent[ly] with the New YorkState sentence [petitioner] is currently serving," the court did not direct that the federalsentence be served in a state correctional facility but, rather, directed that the sentence beserved in a federal prison. Petitioner was credited with prior jail time for the periodbetween February 19, 2009 and February 22, 2010 and was released from federal prisonin October 2011. Petitioner was thereafter received by the Department of Corrections andCommunity Supervision (hereinafter DOCCS) and began serving his 2010 statesentence. Petitioner commenced this CPLR article 78 proceeding seeking credit for theapproximately 20-month period he spent imprisoned in the federal system, i.e., February23, 2010 to October 25, 2011. Supreme Court dismissed the petition on the merits, andthis appeal followed.
Contrary to petitioner's argument, he is not entitled to credit against his 2010 statesentence for the time he served in federal prison pursuant to the March 2010 federalsentence. Under the doctrine of primary jurisdiction, the "sovereignty which first arreststhe individual acquires the right to prior and exclusive jurisdiction over him [or her]"(United States v Copeland, 523 Fed Appx 10, 11 [2d Cir 2013] [internalquotation marks and citation omitted]; see Dutton v United States Attorney Gen.,713 F Supp 2d 194, 200 [WD NY 2010]). This means that a defendant sentenced by twosovereigns will first serve the sentence imposed by the sovereignty with primaryjurisdiction, regardless of which sentence was actually imposed first (see Thomas vBrewer, 923 F2d 1361, 1365 [9th Cir 1991]; In re Liberatore, 574 F2d 78,89 [2d Cir 1978]; Shumate v United States, 893 F Supp 137, 139 [ND NY1995]). Here, while New York initially had primary jurisdiction of petitioner in February2009 when he was arrested pursuant to the Greene County charges, it relinquished thatjurisdiction to the federal government when it released petitioner on his ownrecognizance—the equivalent of bail—in December 2009, subject to anyfederal detainer (see generally Shumate v United States, supra; see alsoCPL art 510). Although the federal government thereafter effected a "loan" of petitionerwhen it surrendered him for transport to Greene County for sentencing in February 2010,it did not relinquish primary jurisdiction of him (see Dutton v United States AttorneyGen., 713 F Supp 2d at 200-201; see also Crawford v Jackson, 589 F2d 693,695-696 [DC Cir 1978], cert denied 441 US 934 [1979]). Consequently,petitioner's state sentence could not commence until he was released from federalcustody and received by DOCCS in November 2011 (see Penal Law §70.30 [1]; see generally Dutton v United States Attorney Gen., 713 F Supp 2d at200-201).[*4]
I disagree with the majority's factualdetermination that "it is clear that both sovereigns intended the state and federalsentences to run concurrently." Although the federal court indicated that it was imposingpetitioner's March 2010 federal sentence to run concurrently with the February 2010 statesentence, it failed to "designate the [s]tate correctional facility as the place for thedefendant to serve his [f]ederal sentence" (Dutton v United States Attorney Gen.,713 F Supp 2d at 199; cf.People ex rel. Howard v Yelich, 87 AD3d 772, 773 [2011]), which, under thesecircumstances, was necessary to effectively make the sentences run concurrently.Specifically, a memo in the record from DOCCS' Sentencing Review Counsel notes that"[i]f primary jurisdiction had not been relinquished by the county and the federal courtdirected its sentence to run concurrently with the state sentence, the Federal Bureau ofPrisons had the discretion to designate DOCCS as the location for the petitioner to servehis federal and state sentences. Since that was not done, the petitioner's federal and statesentences ran sequentially instead of concurrently."
While the federal court may have intended that the sentences runconcurrently—despite the court not properly implementing concurrentsentencing—County Court did not indicate a clear intention that the state andfederal sentences should run concurrently. That court stated that it would run the statesentence concurrently if the federal sentence was imposed first. During the pleaproceeding, the court also made clear that it would not grant an adjournment tospecifically allow the federal sentence to be imposed first. While County Court hadindicated some willingness to permit the sentences to run concurrently, atsentencing—which occurred before the federal sentencing—the courtdenied the request for an adjournment and imposed sentence without addressing therelationship between the state and federal sentences. Indeed, County Court—as thecourt imposing the first sentence—could not make the sentences concurrentbecause there was no federal sentence at that time. When petitioner later wrote to CountyCourt seeking assistance to compel DOCCS to calculate his state sentence with credit fortime served in federal prison, the court responded that "[t]here was no provision in yoursentence regarding any federal prosecution and no representation of what sentence afederal court might impose or how such sentence might be calculated or carried out."Thus, I cannot agree that the state court clearly intended concurrent sentencing.
The majority cites absolutely no legal authority that would permit us to essentiallyresentence petitioner to concurrent prison terms despite the sentencing courts not havingproperly done so. Moreover, contrary to the majority's conclusion, it is not clear that bothsovereigns intended that the state and federal sentences would run concurrrently.DOCCS correctly calculated petitioner's sentence, which is the only issue currentlybefore this Court.[FN*]Accordingly, the judgment should be affirmed.[*5]
Ordered that the judgment is reversed, on thelaw, without costs, petition granted and the Department of Corrections and CommunitySupervision to recompute petitioner's jail time credit in accordance with this Court'sdecision.
Footnote *: In December 2009,County Court released petitioner on his own recognizance, subject to the federal detainerwarrant, and he was placed in federal custody (see generally Shumate v UnitedStates, 893 F Supp 137 [1995]).
Footnote *: Petitioner contends thathe was deprived of the benefit of his plea bargain, which he asserts included concurrentsentencing. That argument is not properly before us in the context of this CPLR article78 proceeding against DOCCS officials and the Greene County Sheriff. The proper wayto raise that argument would be through a motion pursuant to CPL article 440 seeking toset aside his conviction or sentence.