Matter of Russell v Annucci

2015 NY Slip Op 06541 [131 AD3d 772]

August 13, 2015

Appellate Division, Third Department

As corrected through Wednesday, September 23, 2015

[*1]

In the Matter of Frank F. Russell, Appellant, v AnthonyJ. Annucci, as Acting Commissioner of Corrections and Community Supervision,Respondent.

Frank F. Russell, Syracuse, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel),for respondent.

Appeal from a judgment of the Supreme Court (Collins, J.), entered September 26,2014 in Albany County, which dismissed petitioner's application, in a proceedingpursuant to CPLR article 78, to review a determination of the Department of Correctionsand Community Supervision calculating petitioner's jail time credit.

In 1992, 1995 and 2003, petitioner was convicted, respectively, of the crimes ofattempted assault in the second degree, criminal possession of a controlled substance inthe third degree and attempted criminal possession of a controlled substance in the fifthdegree. The indeterminate sentences for these crimes, ranging from 11/2 to3 years to 41/2 to 9 years in prison, ran consecutively and, after they wereimposed, petitioner was periodically released to parole supervision and later declareddelinquent. He was finally restored to parole supervision on January 4, 2006, at whichtime the maximum expiration date of his 1992, 1995 and 2003 sentences was September28, 2008.

While on parole, petitioner was convicted of criminal possession of a controlledsubstance in the third degree and criminal sale of a controlled substance in the thirddegree and, on March 9, 2007, he was sentenced as a second felony offender toconcurrent prison terms of nine years, to be followed by 31/2 years ofpostrelease supervision, which sentences were to run [*2]consecutively to his 1992, 1995 and 2003sentences.^[FN*] Hewas declared delinquent and his parole was revoked as of March 9, 2007. Petitioner wasreceived into the custody of the Department of Corrections and Community Supervision(hereinafter DOCCS) on March 14, 2007. At such time, he was granted 374 days of jailtime credit for the period that he was in local custody from March 7, 2006 to March 15,2007, giving him a maximum expiration date for his 2007 crimes of March 6, 2015.After it was discovered that the time he spent in local custody from March 7, 2006 toMarch 9, 2007 had been credited toward his 1992, 1993 and 2003 sentences, the creditwas reduced to seven days for the period March 9, 2007 to March 15, 2007, giving him amaximum expiration date for his 2007 crimes of March 8, 2016. Petitioner requestedDOCCS to recalculate his jail time credit, but it concluded that his jail time credit wasproperly reduced. He commenced this CPLR article 78 proceeding as a result and,following joinder of issue, Supreme Court dismissed the petition. This appealensued.

We affirm. Pursuant to Penal Law § 70.30 (3), jail time credit shall notbe applied against a subsequent sentence when it has already been applied toward timeserved on a previous sentence (see Matter of Santiago v Germain, 121 AD3d 1479, 1480[2014]; Matter of Blake vDennison, 57 AD3d 1137, 1138 [2008], lv denied 12 NY3d 710[2009]). Here, the record reveals that petitioner's 1992, 1995 and 2003 indeterminatesentences ran uninterrupted from the time that he was restored to parole supervision onJanuary 4, 2006 until he was sentenced on March 9, 2007 for his 2007 crimes. It furtherdiscloses that the time he spent in local custody from March 7, 2006 until March 9, 2007was credited toward his 1992, 1995 and 2003 sentences. In view of this, petitioner wasnot entitled to have such time also credited against his 2007 sentences (see People ex rel. Moultrie vYelich, 95 AD3d 1571, 1572-1573 [2012]). Petitioner's reliance on Matter ofSparago v New York State Bd. of Parole (132 AD2d 881 [1987], mod 71NY2d 943 [1988]) does not compel a contrary conclusion for here, unlikeSparago, petitioner's release on the indeterminate sentences was revoked byoperation of law (see Executive Law § 259-i [3] [d] [iii]).Therefore, Supreme Court properly dismissed the petition.

Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur. Ordered that the judgment isaffirmed, without costs.

Footnote *:That portion of the 2007sentence imposing 31/2 years of postrelease supervision was reduced onappeal to three years (People vRussell, 83 AD3d 1463 [2011], lv denied 17 NY3d 800 [2011]).