| Matter of Smith v Annucci |
| 2017 NY Slip Op 00528 [146 AD3d 1266] |
| January 26, 2017 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Daniel L. Smith, Appellant, v AnthonyJ. Annucci, as Acting Commissioner of Corrections and Community Supervision,Respondent. |
Daniel L. Smith, Marcy, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel),for respondent.
Appeal from a judgment of the Supreme Court (DeBow, J.), entered March 8, 2016in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of the Department of Corrections andCommunity Supervision calculating petitioner's maximum expiration date of his periodof postrelease supervision.
Petitioner, having completed his determinate prison term, commenced serving hisfive-year period of postrelease supervision in Pennsylvania, with a maximum expirationdate of September 23, 2015. On December 9, 2010, petitioner was declared delinquentdue to an alleged violation of the terms of his release. Thereafter, petitioner wasconvicted in Pennsylvania on an assault charge and served a period of incarceration. Hewas also convicted on a separate disorderly conduct charge, while an inmate inPennsylvania. On December 18, 2012, the Department of Corrections and CommunitySupervision (hereinafter DOCCS) was advised that petitioner had completed thesentences ultimately imposed in Pennsylvania and was available to be returned to NewYork, thereby commencing petitioner's parole jail time credit on this date. Following afinal revocation hearing that resulted in a 30-month assessment being imposed, petitionerwas returned to the custody of DOCCS on February 8, 2013. Petitioner was credited with52 days parole jail time from December 18, 2012 through February 7, 2013, and themaximum expiration date of his postrelease supervision was recalculated to September30, 2017. Petitioner commenced this CPLR article 78 proceeding challenging themaximum expiration date of his postrelease supervision. Following joinder of [*2]issue, Supreme Court dismissed the petition and this appealensued.
We are unpersuaded by petitioner's contention that DOCCS altered the five-yearperiod of postrelease supervision imposed and exceeded its jurisdiction when themaximum expiration date of petitioner's postrelease supervision was recalculated. Thefive-year period of postrelease supervision was not, as urged by petitioner, in any wayaltered or modified. Rather, petitioner's postrelease supervision was interrupted whenpetitioner was declared delinquent in December 2010 and did not resume until hereturned to DOCCS's custody in February 2013 (see Penal Law§ 70.40 [3] [a]; People ex rel. Howard v Yelich, 87 AD3d 772, 773[2011]). Petitioner's assertion that he is entitled to additional parole jail time credittoward his New York postrelease supervision due to an alleged error by Pennsylvania inholding him in excess of the sentence imposed in that jurisdiction with regard to theassault conviction is not substantiated by the record, particularly in view of the additionaldisorderly conduct conviction. In any event, any claim of excess confinement inPennsylvania must initially be resolved in that jurisdiction. As the record does not reflectany error in DOCCS's assessment of parole jail time credit in the recalculation of themaximum expiration of petitioner's postrelease supervision date, it will not be disturbed.Petitioner's remaining contentions are without merit.
McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ., concur. Ordered that thejudgment is affirmed, without costs.