| Matter of Blake v Dennison |
| 2008 NY Slip Op 09679 [57 AD3d 1137] |
| December 11, 2008 |
| Appellate Division, Third Department |
| mIn the Matter of Arthur Blake, Also Known as Robert Johnson,Appellant, v Robert Dennison, as Chair of the Division of Parole, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Zainab A. Chaudhry of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (O'Connor, J.), entered January 24, 2008 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78,to, among other things, review a determination of the Department of Correctional Services calculatinghis jail time credit.
Petitioner has a lengthy criminal record dating back to 1975. In 1985, he was convicted of robberyin the first degree, attempted robbery in the second degree, robbery in the third degree and attemptedrobbery in the third degree and was sentenced, as a second felony offender, to an aggregate term of 9to 18 years in prison. When he was received by the Department of Correctional Services (hereinafterDOCS), he was credited with 579 days of jail time for various periods he spent in jail betweenSeptember 1983 and November 1985. He was paroled in April 1993, but declared delinquent inSeptember 1994. In 1996, he was convicted of attempted robbery in the second degree and robbery inthe third degree and was sentenced to consecutive terms of 2
In calculating petitioner's release dates, DOCS did not apply the 579 days of jail time credit hereceived in connection with his 1985 sentences to the time to be served on his 1996 sentences.Petitioner commenced the instant CPLR article 78 challenging this determination and, in the contextthereof, raises certain claims with respect to the Board of Parole. Following joinder of issue, SupremeCourt dismissed the petition and this appeal ensued.
Petitioner contends that because his 1996 sentences ran concurrently with his 1985 sentences(see Penal Law § 70.25 [1] [a]), the 579 days of jail time credit he received inconnection with the latter should have been applied to the former. We disagree. Initially, we note thatPenal Law § 70.30 (3) provides for a credit against the maximum term of an indeterminatesentence for time that a person spends in jail prior to the commencement of the sentence, provided thatthe incarceration resulted from the charge culminating in the sentence. However, the statute furtherstates that such credit "shall not include any time that is credited against the term or maximum term ofany previously imposed sentence to which the person is subject" (Penal Law § 70.30 [3]). Thecourts have interpreted this provision as prohibiting a person from receiving jail time credit against asubsequent sentence when such credit has already been applied to time served on a previous sentence(see Matter of Ryans v Annucci, 45AD3d 1001, 1002 [2007]; Matter ofNieves v Department of Correctional Servs., 28 AD3d 1023, 1024 [2006]; Matter ofGonzalez v Kearney, 62 AD2d 345, 351 [1978]). Inasmuch as this situation is presented in thecase at hand, petitioner is not entitled to have 579 days of jail time credit applied to his 1996 sentences.Accordingly, DOCS properly calculated his jail time credit. As for petitioner's claims concerning theactions of the Board of Parole between 2000 and 2004, such claims have been rendered moot by hisconditional release in 2005 (see Matter ofVelasquez v Dennison, 34 AD3d 898 [2006]; Matter of Lomonaco v Dennison, 29 AD3d 1144 [2006]).
Cardona, P.J., Peters, Spain, Rose and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: The concurrent sentences wereimposed because petitioner was sentenced as a first felony offender, apparently in error.