| People ex rel. Moultrie v Yelich |
| 2012 NY Slip Op 04048 [95 AD3d 1571] |
| May 24, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York ex rel. DerrickMoultrie, Appellant, v Bruce Yelich, as Superintendent of Bare Hill Correctional Facility, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered August 22, 2011 inFranklin County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
In May 2002, petitioner was convicted of a number of crimes and was sentenced to variousterms of imprisonment, the longest of which was 4½ to 9 years for the crime of criminalsale of a controlled substance in the third degree. Petitioner was given a maximum expirationdate of May 15, 2010 and was conditionally released to parole supervision on May 15, 2007. OnDecember 3, 2008, while on parole, he was arrested for additional drug-related crimes. Followinga jury trial, petitioner was convicted of criminal possession of a controlled substance in theseventh degree and criminal possession of a controlled substance in the fifth degree. On May 25,2010, he was sentenced, respectively, to concurrent terms of one year in jail and 2½ yearsin prison to be followed by two years of postrelease supervision. Prior to sentencing, he receiveda certificate of final discharge from parole supervision regarding his 2002 convictions afterreaching his maximum expiration date on May 15, 2010.
Petitioner was received into the custody of the New York State Department of [*2]Corrections and Community Supervision on June 21, 2010 on his2010 convictions. At that time, he was issued a certificate crediting him with 565 days of jailtime while in the custody of the New York City Department of Corrections (hereinafterNYCDOC) from December 4, 2008 until June 20, 2010, thereby giving him a conditional releasedate of January 21, 2011 and maximum expiration date of May 31, 2011. Shortly thereafter,however, an amended certificate was issued reducing his jail time credit to 36 days based uponhis time in NYCDOC's custody from May 16, 2010 until June 21, 2010, which changed hisconditional release date to July 4, 2012 and his maximum expiration date to November 14,2012.[FN*] Petitioner brought this habeas corpus proceeding challenging his time assessment, claiming thathe was improperly denied jail time credit and that his conditional release and maximumexpiration dates are inaccurate. Supreme Court denied the petition without a hearing and thisappeal ensued.
The crux of this appeal turns on whether petitioner is entitled to jail time credit for time spentin NYCDOC's custody from December 4, 2008, following his arrest on the 2010 drug charges ofwhich he was eventually convicted, until May 15, 2010, the date that he reached the maximumexpiration date on his 2002 convictions and received his final discharge from parole supervision.Under the provisions of Penal Law § 70.30 (3), we conclude that he is not. While thestatute provides generally that the amount of time that a person spends in custody prior tosentencing on a charge is to be credited against the sentence imposed for that charge, it clearlystates that "[t]he credit herein provided shall be calculated from the date custody under the chargecommences and shall not include any time that is credited against the term . . . ofany previously imposed sentence . . . to which the person is subject" (Penal Law§ 70.30 [3]). Here, the time that petitioner was in NYCDOC's custody from December 4,2008 to May 15, 2010 was credited against the term of imprisonment imposed in connection withhis 2002 convictions, resulting in petitioner reaching his maximum expiration date and receivinga final discharge of parole supervision. Under the statute, this jail time credit cannot be countedagain for the purpose of calculating the conditional release and maximum expiration dates onpetitioner's 2010 convictions (see Matterof Blake v Dennison, 57 AD3d 1137, 1138 [2008], lv denied 12 NY3d 710[2009]; Matter of Villanueva vGoord, 29 AD3d 1097, 1098 [2006]). Inasmuch the conditional release and maximumexpiration dates on petitioner's 2010 convictions did not include this jail time credit, we find thatthe calculation was proper, and Supreme Court properly denied petitioner's application.
Mercure, J.P., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.
Footnote *: The certificate and amendedcertificate governing petitioner's jail time credit were prepared by NYCDOC and certified to theDepartment of Corrections and Community Supervision, which was bound by such certification,upon petitioner's transfer from local to state custody (see Correction Law § 600-a;Matter of Neal v Goord, 34 AD3d1142, 1143 [2006]).