Opinion
February 13, 1979
In a proceeding pursuant to CPLR article 78 to compel the respondents to credit the petitioner with 203 days of jail time, petitioner appeals from a judgment of the Supreme Court, Dutchess County, entered January 12, 1978, which, after a hearing, dismissed the petition. Judgment reversed, on the law, without costs or disbursements, and petition granted to the extent that the respondents are directed to credit petitioner with 203 days of jail time against the sentence imposed upon him on September 14, 1973. Petitioner was arrested on March 1, 1973 and was later convicted of burglary in the third degree and grand larceny in the third degree. On June 28, 1973 he was sentenced to an indeterminate term of imprisonment with a maximum of five years. Petitioner was also indicted on another charge and he subsequently pleaded guilty to attempted burglary in the third degree. On September 14, 1973, he was sentenced to an indeterminate term of imprisonment with a maximum of four years, to run concurrently with the first sentence. On September 21, 1973, petitioner commenced serving his concurrent sentences. He was granted jail time credit of 203 days against the sentence imposed on June 28, 1973, and 121 days against the sentence imposed on September 14, 1973. On appeal, petitioner contends, inter alia, that he is entitled to jail time credit of 203 days against both sentences. We agree (see Penal Law, § 70.30, subd 3; Matter of Colon v. Vincent, 49 A.D.2d 939, affd 41 N.Y.2d 1084). We have considered petitioner's other claim and find it to be without merit. Titone, J.P., O'Connor and Shapiro, JJ., concur.
Martuscello, J., dissents and votes to affirm the judgment.