| Matter of Hot v New York State Dept. of Correctional Servs. |
| 2010 NY Slip Op 09304 [79 AD3d 1383] |
| December 16, 2010 |
| Appellate Division, Third Department |
| In the Matter of Bajro Hot, Appellant, v New York StateDepartment of Correctional Services et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (David Lawrence III of counsel), for NewYork State Department of Correctional Services, respondent. Karen Mannino, County Attorney, Monticello, for Sullivan County Sheriff, respondent. Jane L. Gordon, New York City Law Department, New York City, for New York CityDepartment of Corrections, respondent.
Malone Jr., J. Appeal from a judgment of the Supreme Court (LaBuda, J.), entered December 29,2009 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted a motion byrespondent Sullivan County Sheriff to dismiss the petition.
In May 2005, petitioner, who was on probation for a conviction rendered in Sullivan County, wasarrested in New York County on a robbery charge and committed to the custody of respondent NewYork City Department of Correction. A violation of probation petition was then filed in Sullivan Countyand, on July 13, 2005, petitioner pleaded guilty to violating his probation and was resentenced to aprison term of 1 to 3 years, which sentence he commenced serving in October 2006 when he wasdelivered to the custody of respondent New York Department of Correctional Services (seePenal Law § 70.30 [1]). Petitioner was subsequently convicted on the robbery charge in NewYork County and sentenced to an eight-year prison term, [*2]to beserved consecutively to the previously imposed sentence.
In October 2008, while incarcerated, petitioner received a notice indicating, among other things,that he was entitled to a total of 512 days of jail time credit. In November 2008, petitioner contactedthe Office of Sentencing Review, as well as Supreme Court, claiming, among other things, that his jailtime credit had been improperly calculated. After petitioner again contacted Supreme Court inFebruary 2009 and requested assistance in the matter, the court assigned counsel to him. This CPLRarticle 78 proceeding was commenced in July 2009 and the court thereafter granted a motion byrespondent Sullivan County Sheriff to dismiss the petition as untimely. Petitioner appeals.
While we disagree with Supreme Court that this proceeding was untimely commenced, we agreewith respondents that the petition nevertheless must be dismissed on the merits (see e.g. Matter of Blake v Travis, 35 AD3d925, 926 [2006]). The record reflects that petitioner received credit for all of the days that he wasconfined prior to October 11, 2006, the date on which he was committed to the custody of theDepartment of Correctional Services. In particular, the 500 days he spent in the custody of the NewYork City Department of Correction between May 2005 and September 2006 awaiting resolution ofthe robbery charge were properly credited against the aggregate of his consecutive sentences(see Penal Law § 70.30 [3]). Any time served after October 11, 2006 is properlyconsidered time served toward the Sullivan County sentence rather than jail time credit against thesubsequent New York County sentence (seeMatter of Villanueva v Goord, 29 AD3d 1097, 1098 [2006]). As the record reflects thatpetitioner has been credited with all of the jail time to which he is entitled, and we find no error in thecalculation of petitioner's release dates, the petition was properly dismissed (see Matter of Blake vTravis, 35 AD3d at 926).
To the extent not specifically addressed, petitioner's remaining contentions have been consideredand found to be without merit.
Cardona, P.J., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the judgment is affirmed,without costs.