Opinion
November 12, 1976
Appeal from the Cayuga Supreme Court.
Present — Marsh, P.J., Moule, Cardamone, Simons and Goldman, JJ.
Judgment unanimously affirmed. Memorandum: On September 10, 1973, appellant was sentenced upon a Bronx County indictment to an indeterminate term of zero to six years. Subsequently, on December 18, 1973, he was sentenced upon a wholly unrelated New York County indictment to another indeterminate term of zero to six years, to run concurrently with the earlier Bronx County sentence. Appellant was credited with 363 days of jail time against the Bronx County sentence and 351 days against the New York County sentence, and his entitlement to that credit is not in dispute. In the instant CPLR article 78 proceeding, however, appellant seeks additional jail-time credit against his New York County sentence for the 99 days which elapsed between the date of the Bronx County sentence and the later New York County sentence. The proceeding was properly dismissed by Special Term. Jail-time credit is governed by subdivision 3 of section 70.30 Penal of the Penal Law, which provides in pertinent part that "[t]he maximum term of an indeterminate sentence imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence" (emphasis supplied). Appellant was indeed "in custody" between September 10 and December 18 of 1973, but such would have been true even if no New York County indictment had ever been returned. His being in custody was the "result" of the Bronx County sentence he began serving on September 10, 1973; it was not the "result" of the New York County charges that culminated in the sentence imposed on December 18, 1973 (Matter of Canada v McGinnis, 36 A.D.2d 830, affd 29 N.Y.2d 853). Accordingly, appellant is not entitled to the additional jail-time credit he seeks.