| Matter of Brooks v Alexander |
| 2009 NY Slip Op 06056 [64 AD3d 1096] |
| July 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Sheltiere Brooks, Appellant, v George Alexander,as Chair of the Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Kane, J. Appeal from a judgment of the Supreme Court (Zwack, J.), entered July 29, 2008 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Department of Correctional Services calculatingpetitioner's parole jail time credit.
In 1995, petitioner pleaded guilty to criminal possession of a controlled substance in thesecond degree and was sentenced to a prison term of three years to life. He successfullycompleted a six-month shock incarceration program, however, and was released to parolesupervision in April 1996. Although he was declared delinquent on eight occasions between thenand 2005, each time that the Board of Parole recommended revocation of his parole itcontemporaneously recommended that parole be restored if petitioner successfully completed adrug rehabilitation program (see Executive Law § 259-i [3]). During the timeperiods between the dates on which he was declared delinquent and the dates on which heentered a drug treatment program, petitioner was held in custody in either a county jail or stateprison while he awaited transfer to the treatment program. Inasmuch as petitioner completedtreatment on each occasion, the corresponding declarations of delinquency were canceled(see 9 NYCRR 8004.3 [e] [2]).[*2]
In June 2007, petitioner violated his parole yet again.Following a final revocation hearing, an Administrative Law Judge declared petitionerdelinquent and directed that he be reincarcerated for three years pursuant to a regulation whichrequires that any period of reincarceration for a shock releasee "be for at least a period of timeequal to the minimum period of imprisonment imposed by the court" (9 NYCRR 8010.3 [a]).Petitioner's three-year time assessment was subsequently reduced by 190 days, reflecting jailtime credit for the 140 days he was in custody prior to his transfer to the shock incarcerationprogram in 1995 and 50 days for the time period between the declaration of delinquency for the2007 violation leading to his present incarceration and the date on which he was returned to thecustody of the Department of Correctional Services (see 9 NYCRR 8010.3 [b]).Petitioner was not, however, granted any credit for those time periods during which he was heldin custody while awaiting transfer to a drug treatment facility as a result of his eight earlierparole violations. After exhausting his administrative remedies, petitioner commenced thisproceeding asserting entitlement to parole jail time credit for those occasions. Supreme Courtdismissed the petition, concluding that petitioner was properly credited with all of the time towhich he was entitled. Petitioner appeals.
We affirm. Giving deference to the agency charged with administering the law pertaining tocredit against sentences, we find that the interpretation of the regulation here was reasonable(see People ex rel. Knowles v Smith, 54 NY2d 259, 267 [1981]; Matter of Citizens'Envtl. Coalition, Inc. v New York State Dept. of Envtl. Conservation, 57 AD3d 1279, 1279[2008]). The regulation states that the minimum period of reincarceration for a shock releasee"shall be reduced by the violator's pre-commitment jail time and any time spent incarcerated at a[s]tate correctional facility other than a shock incarceration facility" (9 NYCRR 8010.3 [b]). Thestate interpreted that regulation to reduce petitioner's minimum period of reincarceration by timehe spent in jail or prison prior to his commitment to the original shock incarceration program andprior to his commitment to prison on the 2007 violation. On each of the other occasions when hewas declared delinquent, he was never committed to a correctional facility but was permitted toattend a drug rehabilitation program and had the delinquency canceled. Thus, he was creditedwith all "pre-commitment" periods of confinement, but not for periods of confinement that didnot precede a commitment to a correctional facility. As this interpretation of the regulation wasreasonable, petitioner received all of the credit he was due, rendering respondent's determinationneither arbitrary nor capricious (see Matter of Matos v Goord, 27 AD3d 940, 941[2006]).
Insofar as petitioner's argument can be construed as relying on Executive Law § 259-i(3) (h), his reliance is misplaced, as that statute credits time against an individual's determinateterm or maximum term of imprisonment, not the minimum term.
Cardona, P.J., Rose, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.