| Matter of Maldonado v Howard |
| 2017 NY Slip Op 02493 [148 AD3d 1501] |
| March 30, 2017 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Angel Maldonado,Appellant, v Timothy B. Howard, as Sheriff of Erie County, et al.,Respondents. |
Angel Maldonado, Malone, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondents.
Rose, J. Appeal from a judgment of the Supreme Court (Feldstein, J.), entered June 2, 2016in Franklin County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent Erie County Sheriff calculating petitioner'sjail time credit.
In 2003, petitioner was sentenced to an aggregate prison term of 5 to 15 years. He wasparoled in May 2009, but twice violated parole and was returned to custody, the second time inApril 2010. He was released again to parole supervision in September 2010. Petitioner wasarrested on a parole violation warrant on May 18, 2011. On May 25, 2011, while being held onthe parole violation warrant, petitioner was also charged with grand larceny in the third degree.Petitioner's parole was revoked in August 2011 and a three-month delinquent time assessmentwas imposed. On November 9, 2011, upon expiration of the delinquent time assessment,petitioner's parole was restored but he remained incarcerated pending the disposition of the grandlarceny charge. Petitioner was convicted of that charge and was sentenced on January 7, 2013 toa prison term of 3
Petitioner was received by the Department of Corrections and Community Supervision onJanuary 24, 2013, and he was ultimately granted 186 days of jail time credit on the 2013conviction, corresponding to the time periods from May 25, 2011 to November 9, 2011 and from[*2]January 7, 2013 to January 23, 2013. Petitioner commencedthis CPLR article 78 proceeding challenging the calculation of his jail time credit on the 2013sentence and, following joinder of issue, Supreme Court dismissed the petition. Petitioner nowappeals.
We affirm. "Although jail time credit is authorized for time spent in custody prior to thecommencement of such sentence as a result of the charge that culminated in the sentence, jailtime credit shall not include any time that is credited against the term or maximum term of anypreviously imposed sentence to which the person is subject" (Matter of Villanueva v Goord, 29 AD3d 1097, 1098 [2006][internal quotation marks, ellipsis and citation omitted]; see Penal Law§ 70.30 [3]; Matter ofRussell v Annucci, 131 AD3d 772, 773 [2015]). Petitioner argues that he should alsoreceive jail time credit on the 2013 sentence for the time period from November 10, 2011 toJanuary 6, 2013. Inasmuch as the record reflects that petitioner's 2003 sentence resumed runningon November 10, 2011 and his next delinquency date was January 7, 2013, the time period inquestion was properly credited to the 2003 sentence (see Matter of Russell v Annucci,131 AD3d at 773). Accordingly, that time period may not also be credited to the 2013 sentence(see Penal Law § 70.30 [3]). Contrary to petitioner's contention, Matterof Sparago v New York State Bd. of Parole (132 AD2d 881 [1987], mod 71 NY2d943 [1988]) does not compel a contrary result, as that case is factually distinguishable from thiscase.
Peters, P.J., McCarthy, Garry and Aarons, JJ., concur. Ordered that the judgment is affirmed,without costs. [Prior Case History: 2016 NY Slip Op 30975(U).]