| Matter of Murphy v Wells |
| 2012 NY Slip Op 04052 [95 AD3d 1575] |
| May 24, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Gerald J. Murphy, Jr., Appellant, v KevinM. Wells, as Sheriff of St. Lawrence County, et al., Respondents. |
—[*1] Michael C. Crowe, County Attorney, Canton, for Kevin M. Wells, respondent. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for Brian Fischer,respondent.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered August 19, 2011 in St.Lawrence County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent Sheriff of St. Lawrence County calculatingpetitioner's jail time credit.
Petitioner was convicted of burglary in the third degree in November 1998 and sentenced, asa second felony offender, to a prison term of 3½ to 7 years to be served consecutively topreviously imposed sentences. He was thereafter released to parole supervision in March 2007,but was arrested in September 2007 on new charges. A notice of parole violation and warrantwere issued but the warrant was canceled when, on June 2, 2008, petitioner reached themaximum expiration date on his 1998 conviction. Petitioner remained in local custody inconnection with the 2007 charges.
Thereafter, following his conviction on the 2007 charges, petitioner was sentenced inOctober 2008 to two consecutive prison terms of 3 to 6 years. Petitioner was credited with 139days of jail time by respondent Sheriff of St. Lawrence County, representing the period ofincarceration between the maximum expiration of his 1998 sentence and his commitment to the[*2]Department of Corrections and Community Services for his2008 sentence. Petitioner then commenced this CPLR article 78 proceeding to challenge thatcalculation. Supreme Court dismissed the petition and petitioner now appeals.
We affirm. Petitioner contends that, inasmuch as his parole delinquency was canceled whenhe reached his maximum expiration date on the 1998 sentence, the entire time of hisincarceration between September 2007 and his remand to prison in October 2008 should havebeen credited toward his 2008 sentence. We disagree. Although petitioner's parole was notrevoked, any jail time prior to petitioner's maximum expiration date on June 3, 2008 was creditedtoward his 1998 sentence until that sentence expired on its own terms and, therefore, that timecould not be credited toward his 2008 sentences (see Penal Law § 70.30 [3]; Matter of Mena v Fischer, 84 AD3d1611, 1611 [2011], lv denied 17 NY3d 710 [2011]; Matter of Du Bois vGoord, 271 AD2d 874, 875-876 [2000]).
To the extent not specifically addressed, petitioner's remaining contentions have beenconsidered and found to be without merit.
Peters, P.J., Mercure, Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.