| Matter of Brown v Stanford |
| 2018 NY Slip Op 05396 [163 AD3d 1337] |
| July 19, 2018 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Frank Brown, Appellant, v Tina M.Stanford, as Chair of the Board of Parole, Respondent. |
Karen L. Murtagh, Prisoners' Legal Services of New York, Albany (Matthew McGowan ofcounsel), for appellant.
Barbara D. Underwood, Attorney General, Albany (Laura Etlinger of counsel), forrespondent.
Rumsey, J. Appeal from a judgment of the Supreme Court (Mackey, J.), entered October 11,2017 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent calculating the date of petitioner's finaldeclaration of delinquency.
Petitioner was convicted of criminal possession of a controlled substance in the fourthdegree, and, in July 2007, received a prison sentence of five years, to be followed by three yearsof postrelease supervision. In August 2010, petitioner was released to postrelease supervision. InJanuary 2011, petitioner sold cocaine to an undercover police officer but was not arrested at thattime. In May 2011, petitioner was arrested for several offenses and, after a June 2011 finalrevocation hearing, was ultimately declared delinquent for violating the conditions of hispostrelease supervision. Following a subsequent completion of a specified drug treatmentprogram, petitioner was restored to postrelease supervision as of August 11, 2011.
On March 2, 2012, while on continued postrelease supervision, petitioner was arrested forthe January 2011 drug offense and detained in the local jail. He thereafter pleaded guilty tocriminal sale of a controlled substance in the third degree and, on September 11, 2012, wassentenced, as a second felony offender, to a consecutive six-year prison term, to be followed bythree years of postrelease supervision.[FN1] On September 21, 2012, petitioner wasreceived into the custody of the Department of Corrections and Community Supervision(hereinafter DOCCS), at which time the Board of Parole (hereinafter Board) issued a finaldeclaration of delinquency finding petitioner to be delinquent from supervision as of September11, 2012, the date of his sentencing for his new felony conviction. In so doing, petitioner'spostrelease supervision was not interrupted until September 21, 2012, and petitioner wastherefore credited with only 10 days of jail time against his six-year prison term for the time thathe spent in local jail between his September 11, 2012 sentencing and his September 21, 2012receipt into the custody of DOCCS. The balance of time that petitioner spent in local jail fromthe time of his March 2, 2012 arrest to the day prior to his September 11, 2012 sentencing wascredited towards his initial period of postrelease supervision (see Penal Law§ 70.30 [3]).
Thereafter, petitioner requested that the Board amend his final declaration of delinquencydate to March 2, 2012, the date of his arrest for the January 2011 drug offense. The Board deniedhis request based upon its interpretation of its policy and procedures manual, and petitionercommenced this CPLR article 78 proceeding challenging that determination. Supreme Courtdismissed the petition, finding that the Board's determination to use the sentencing date as thefinal declaration of delinquency date under these circumstances was rational and entitled todeference. Petitioner appeals.
We affirm. As an initial matter, respondent argues that this proceeding is barred by resjudicata because petitioner brought a prior CPLR article 78 proceeding challenging DOCCS'sdetermination that he is not entitled to jail time credit towards his September 2012 sentence forthe time that he spent in local jail between his March 2, 2012 arrest and his September 12, 2012sentencing.[FN2] Here,however, respondent did not timely move to dismiss the petition and did not assert the defense ofres judicata in its answer, and, therefore, this defense is waived (see CPLR 3211 [a] [5];[e]; Kreamer v Town of Oxford, 96AD3d 1130, 1132 n 3 [2012]; Ouyang v Jeng, 260 AD2d 618, 619-620 [1999]).
Turning to the merits, petitioner argues that the Board's determination to use the date of hissentencing, rather than the date of his arrest, as the final declaration of delinquency date isirrational. We accord deference to the Board's interpretation of its own regulations, and itsdetermination must be upheld so long as it is rational and neither arbitrary nor capricious (see Matter of Brooks v Alexander, 64AD3d 1096, 1098 [2009]). Where, as here, a "person on post-release supervision has beenconvicted of a new felony committed while under such supervision and a new indeterminate ordeterminate sentence has been imposed, the [B]oard's rules shall provide for a final declaration ofdelinquency" (Executive Law § 259-i [3] [d] [iii]). The Board's rules provide, inrelevant part, that the final declaration of delinquency date may be "either the offense date orsentence date, depending on the circumstances" (New York State Division of Parole Policy andProcedures Manual, Item 9212.07 at 2 [July 2004]). This rule—which does not provide theoption of declaring a person delinquent on an arrest date—is consistent with the regulationthat provides that "[t]he date of delinquency is the earliest date that a violation of parole isalleged to have occurred" (9 NYCRR 8004.3 [b]), because an arrest, standing alone, is not aviolation of release conditions (see 9 NYCRR 8003.2).
The Board's 2004 policy manual does not specify the circumstances that determine whetherthe offense date or sentence date is to be used to determine the delinquency date. However, asconceded by petitioner, the offense date is not a practical delinquency date, in light of hisunrelated postrelease supervision revocation and restoration to supervision during the timebetween the offense date and his arrest on that charge. Thus, the Board acted rationally bydeclaring petitioner delinquent as of the only other date provided by its rules—hissentence date.
Garry, P.J., Egan Jr., Aarons and Pritzker, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1:Because petitioner was stillsubject to the undischarged 2007 sentence of imprisonment when he committed the January 2011drug offense, the September 2012 prison sentence was required to run consecutively to theundischarged 2007 sentence (see Penal Law § 70.25 [2-a]). After petitionerwas sentenced in September 2012, he was subject to two periods of postrelease supervision;however, those periods merged by operation of law to form a single three-year period ofpostrelease supervision (see Penal Law § 70.45 [5] [c]).
Footnote 2:Supreme Court (McNally Jr., J.)dismissed the first petition, finding that petitioner was not entitled to jail time credit because theperiod of time that he spent in local custody is credited towards his "previously imposed. . . period of post-release supervision to which [petitioner] is subject" (Penal Law§ 70.30 [3]).