| People ex rel. Allen v Yelich |
| 2018 NY Slip Op 01686 [159 AD3d 1202] |
| March 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York ex rel. Erick Allen,Appellant, v Bruce Yelich, as Superintendent of Bare Hill Correctional Facility,Respondent. |
Michael E. Cassidy, Prisoner's Legal Services of New York, Plattsburgh, for appellant.
Eric T. Schneiderman, Attorney General, Albany (Brian Ginsberg of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered November30, 2016 in Franklin County, which denied petitioner's application for a writ of habeas corpus, ina proceeding pursuant to CPLR article 70, without a hearing.
In June 2005, petitioner was sentenced as a second felony offender to four years in prison andfive years of postrelease supervision for his conviction of attempted criminal possession of aweapon in the third degree. Following his release to postrelease supervision in July 2010,petitioner absconded and, in January 2011, was declared delinquent. In May 2011, petitioner wasarrested in New Jersey on unrelated charges, and, in satisfaction of those charges, he pleadedguilty to assaulting a law enforcement officer and resisting arrest. The New Jersey trial courtsentenced petitioner to concurrent prison terms of four years for the assault conviction and 3 to 7years for the resisting arrest conviction. At sentencing, the trial court specified that the sentencesit imposed on the convictions were to run concurrently with one another and "to runconcurrent[ly] with the sentence imposed on [the] New York State parole violation." In January2016, petitioner was released from the New Jersey Department of Corrections and returned to aNew York jail. Petitioner thereafter pleaded guilty to violating his postrelease supervision andwas given a 15-month time assessment. After being returned to the custody of the Department ofCorrections [*2]and Community Supervision (hereinafterDOCCS) in April 2016, petitioner filed a petition, and then an amended petition, for a writ ofhabeas corpus for immediate release based on the claim that he had reached the maximumexpiration of his sentence. Petitioner specifically claimed that he was wrongfully denied credit inNew York for his incarceration in New Jersey from June 2012 to January 2016. Supreme Courtdenied the petition, and petitioner now appeals.
Initially, as the record reflects that petitioner was released to postrelease supervision duringthe pendency of this appeal, habeas corpus relief is not available (see People ex rel. Turner v Sears, 63AD3d 1404, 1405 [2009]; Peopleex rel. McAdoo v Taylor, 31 AD3d 847, 848 [2006]). However, inasmuch as this mattercalls into question the calculation of petitioner's maximum expiration date and period of hispostrelease supervision (see People exrel. Speights v McKoy, 88 AD3d 1039, 1040 [2011]; People ex rel. Turner vSears, 63 AD3d at 1405), we decline to dismiss this appeal as moot and instead convert theCPLR article 70 proceeding to a CPLR article 78 proceeding (see CPLR 103 [c]; People ex rel. Howard v Yelich, 87AD3d 772, 773 [2011]; People exrel. Rodriguez v Warden, Rikers Is. Correctional Facility, 61 AD3d 494, 494 [2009]; cf. People ex rel. Baron v New York StateDept. of Corr. Servs., 98 AD3d 1307, 1308 [2012], lv denied 20 NY3d 855[2012]).
We are not persuaded by petitioner's contention that DOCCS improperly declined to credithim for the period of out-of-state incarceration that he served in New Jersey from June 2012 toJanuary 2016. When an individual in the custody of DOCCS is alleged to have violated the termsof his or her parole release and has been declared delinquent, "the declaration of delinquencyshall interrupt the person's sentence as of the date of the delinquency[,] and such interruptionshall continue until the return of the person to an institution under the jurisdiction of [DOCCS]"(Penal Law § 70.40 [3] [a]; see Matter of Miller v New York State Dept. of Corr. & CommunitySupervision, 105 AD3d 677, 677 [2013]; Matter of Brown v Annucci, 60 AD3d 1223, 1225 [2009]; Matter of Davidson v State of N.Y. Dept. ofCorrectional Servs., 53 AD3d 741, 742 [2008], lv denied 11 NY3d 706 [2008];Matter of Washington v Dennison,42 AD3d 830, 831 [2007]). Here, when petitioner was declared delinquent on his parolerelease in January 2011, his New York sentence was interrupted and did not resume until he wasreturned to the custody of DOCCS in January 2016 (see Penal Law § 70.40[3]; Matter of Smith v Annucci, 146AD3d 1266, 1267 [2017]; People ex rel. Howard v Yelich, 87 AD3d at 773;cf. Penal Law § 70.30 [7]). Thus, DOCCS's recalculation and adjustment ofpetitioner's maximum expiration date did not impermissibly extend or modify petitioner'sfive-year period of postrelease supervision (see Matter of Smith v Annucci, 146 AD3d at1267). While the New Jersey trial court intended for petitioner's New Jersey sentence to runconcurrently with the undischarged period of his New York sentence, "it was incumbent upon the[New Jersey] authorities to return him to New York to effectuate that intent" (People ex rel.Howard v Yelich, 87 AD3d at 773; see Penal Law § 70.40 [3];Matter of Smith v Annucci, 146 AD3d at 1267; see also Penal Law§§ 70.20 [3]; 70.30 [2-a]; Matter of Hall v LaValley, 115 AD3d 1125, 1128-1129 [2014,McCarthy, J., dissenting] [noting that while both the federal and state courts intended theirrespective sentences to run concurrently with one another, the federal court failed to designate thestate correctional facility as the place or jurisdiction in which the defendant could serve hisfederal prison sentence]).[FN*]
[*3] Accordingly, inasmuch as the record before us does not reflect any error in DOCCS'srecalculation of the maximum expiration of petitioner's postrelease supervision date, it will notbe disturbed. Petitioner's remaining contentions have been considered and found to be withoutmerit.
Garry, P.J., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment is modified,on the law, without costs, by converting the petition to a CPLR article 78 proceeding, and, as somodified, affirmed.
Footnote *:When a defendant in state ornon-federal custody receives a federal prison sentence—and the federal district courtexpressly indicates at sentencing that the federal prison sentence will run concurrently with thestate sentence—the Federal Bureau of Prisons "will designate the [s]tate correctionalfacility as the place for the defendant to serve his [or her] [f]ederal sentence" (Dutton vUnited States Attorney Gen., 713 F Supp 2d 194, 199-200, 203 [WD NY 2010]; see18 USC §§ 3584 [a]; 3585 [a]; 3621 [b]; Abdul-Malik vHawk-Sawyer, 403 F3d 72, 75-76 [2d Cir 2005]; Clapper v Langford, 186 F Supp 3d235, 238 [ND NY 2016]).