| Matter of Ryans v Annucci |
| 2007 NY Slip Op 08327 [45 AD3d 1001] |
| November 8, 2007 |
| Appellate Division, Third Department |
| In the Matter of Anthony Ryans, Appellant, v Anthony J. Annucci,as Deputy Commissioner and Counsel of the Department of Correctional Services, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Jennifer Grace Miller of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered November 6, 2006 inClinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Department of Correctional Services denyingpetitioner's request for a recalculation of his parole eligibility date.
Upon his conviction of murder in the second degree, petitioner was sentenced in 2005 to aterm of imprisonment of 25 years to life. He thereafter commenced this CPLR article 78proceeding seeking jail time credit for time that he had served in local custody prior to thecommencement of other criminal sentences imposed in 1989, as well as credit for time that hespent under parole supervision for the 1989 sentences. Supreme Court dismissed the petition,prompting this appeal.
The time that petitioner served in local custody before beginning his 1989 sentences cannotbe credited toward his 2005 prison sentence and, further, petitioner already received credit forthat time against his 1989 sentences (see Penal Law § 70.30 [3]; Matter ofNieves v Department of Correctional Servs., 28 [*2]AD3d1023, 1024 [2006]). Likewise, the time that petitioner spent on parole for his 1989 sentencescannot be credited toward the time to be served with respect to his 2005 sentence (see Matterof McCormack v Kuhlmann, 188 AD2d 779, 780 [1992]). Accordingly, the judgment isaffirmed.
Cardona, P.J., Mercure, Crew III, Spain and Carpinello, JJ., concur. Ordered that thejudgment is affirmed, without costs.