Opinion
2010-1197.
Decided March 11, 2011.
This proceeding was originated by the Petition for Judgment pursuant to Article 78 of the CPLR of Jahris Washington, verified on September 14, 2010 and filed in the Franklin County Clerk's office on September 21, 2010. Petitioner, who was an inmate at the Upstate Hill Correctional Facility, challenged the computation of jail time credit associated with his sentence of incarceration in DOCS custody. The Court issued an Order to Show Cause on September 24, 2010 and as a part thereof this proceeding was converted into a habeas corpus proceeding. The Court has since received and reviewed the Answer of the respondent Horn, dated October 22, 2010, as well as petitioner's Reply thereto, filed in the Franklin County Clerk's office on November 5, 2010. The Court has also received and reviewed the Return of the respondents Fischer and Evans, including in camera materials, dated October 29, 2010, as well as petitioner's Reply thereto, filed in the Franklin County Clerk's office on November 26, 2010. The Court has also received and reviewed additional correspondence from petitioner, together with an exhibit, filed in the Franklin County Clerk's office on December 13, 2010.
By Letter Order dated January 13, 2011 the respondents Fischer and Evans were directed to supplement their Return. In response thereto the Court has received and reviewed the Affirmation of Robert C. Glennon Supplementing Return of Respondents Fischer and Evans, dated January 21, 2011.
On September 3, 2004 petitioner, who was apparently a Juvenile Offender (Penal Law § 10.00(18)(2)), was sentenced in Supreme Court, Kings County, to an indeterminate sentence of 1 to 3 years upon his adjudication as a Youthful Offender following a plea of guilty to the crime of Robbery 1°. He was received by the Office of Children and Family Services (OCFS) on September 3, 2004, certified as entitled to 25 days of jail time credit. At that time the maximum expiration date of petitioner's 2004 sentence was calculated as August 7, 2007.
Petitioner was conditionally released to parole supervision on September 6, 2006. On February 19, 2007, however, he taken into local custody in New York City following an arrest in connection with new criminal charges. On February 24, 2007 a parole violation warrant was lodged with the New York City Department of Correction. Following a final parole revocation hearing conducted on March 7, 2007 petitioner's parole was revoked with a modified delinquency date of January 24, 2007 and the presiding Administrative Law Judge directed that petitioner be held to the maximum expiration date of his 2004 sentence. According to respondents Fischer and Evans, the petitioner reached the maximum expiration date of his 2004 sentence on September 7, 2007 and was, therefore, "discharged" on that date. Throughout this time period, however, petitioner remained incarcerated in local custody pending disposition of the new criminal charges.
On February 26, 2008 petitioner was sentenced in Supreme Court, Kings County, to a determinate term of 3½ years, with 5 years post-release supervision, upon his conviction of the crime of Criminal Possession of a Weapon 2°. He was received into DOCS custody on March 11, 2008 originally certified by the New York City Department of Correction as entitled to 387 days of jail time credit (Penal Law § 70.30(3)) covering the period from his February 19, 2007 arrest to his March 11, 2008 arrival in DOCS custody. At that time the maximum expiration date of petitioner's 2008 sentence was apparently calculated as August 18, 2010.
In June of 2010, more than two years after petitioner's arrival in DOCS custody and only two months in advance of the originally calculated maximum expiration date of his 2008 sentence, an amended Jail Time Certification was issued by the New York City Department of Correction. The amended certificate reduced petitioner's entitlement to jail time credit from 387 days to 186 days. According to the memorandum accompanying the amended certificate, "[t]he period of 2/20/07-9/07/07 were [sic] credited to a previously imposed sentence [presumably the 2004 sentence], therefore this period of time is not applicable towards the sentence he is currently serving [presumably the 2008 sentence] as per NYS Division of Parole." Taking into account the amended certification, DOCS officials re-calculated the maximum expiration date of petitioner's 2008 sentence as March 4, 2011. This proceeding ensued.
Petitioner contends that the issuance of the amended Jail Time Certification reducing his entitlement to jail time credit from 387 days to 186 days was arbitrary and capricious. According to petitioner, the amended certificate" . . . fails to depict reason how a 386-day confinement . . . without discharge on such, could equate to 186-days." Petitioner seeks, in effect, reinstatement of the August 18, 2010 maximum expiration date of his 2008 sentence and, accordingly, release from DOCS custody to post-release parole supervision. Although the relief requested by petitioner is opposed by both the state and city respondents, such respondents acknowledge a four-day error in the amended Jail Time Certification. Accordingly, they concede, in effect, that the maximum expiration date of petitioner's 2008 sentence should be recalculated from March 4, 2011 to February 28, 2011. The Court has since learned that petitioner was, in fact, released from DOCS custody to post-release parole supervision on February 28, 2011.
This Court has some concerns with respect the calculations associated with petitioner's multiple sentences of imprisonment. It is first noted that although petitioner's 2004 indeterminate sentence was initially served in OCFS, rather than DOCS, custody ( see CPL § 70.20(4)(a) and Executive Law § 500(3)), the relevant sentence/parole calculations were to be made in the same manner as for inmates confined in DOCS custody. See Executive Law § 508(7). Thus, the running of petitioner's 2004 indeterminate sentence was interrupted as of the January 24, 2007 delinquency date and that interruption would have continued until petitioner was returned to OCFS/DOCS custody. See Penal Law § 70.40(3)(a) and Davidson v. State of New York Department of Correctional Services, 53 AD3d 741. As of the delinquency date petitioner still owed 6 months and 13 days to the initially calculated August 7, 2007 maximum expiration date of his 2004 sentence.
In view of the interruption noted in the preceding paragraph, this Court struggles to understand the sentence calculation methodology underlying the respondents' determination to credit the 6-month and 13-day period from February 24, 2007 (when the parole violation warrant was lodged) to September 7, 2007 (when petitioner purportedly reached the maximum expiration date of his 2004 sentence) against the maximum term of petitioner's 2004 sentence. Citing 9 NYCRR § 8002.6(b)(1) and (c)(1), the respondents Fisher and Evans assert in paragraph 11 of their Return that "[t]he lodging of Parole's warrant on February 24, 2007 and the hold to ME' delinquent time assessment resulted in the period between the date of the lodging and the completion of Petitioner's 2004 sentence on September 7, 2007 being credited to the that sentence." The regulatory provisions cited by the state respondents relate to the running of a delinquent time assessment and a parole violator's eligibility for re-release to parole supervision upon the expiration thereof. Such provisions, however, have no direct bearing on the issue of whether or not post-delinquency time spent in local custody should be credited against the maximum term of an interrupted indeterminate sentence. Under the facts and circumstances of this case, where a new determinate sentence was imposed on petitioner as the result of a crime committed while under parole supervision from his 2004 sentence, that issue can only be resolved after considering the interaction between jail time credit and parole jail time credit.
The calculation of jail time credit is controlled by Penal Law § 70.30(3) which provides, in relevant part, as follows:
"The term of . . . a determinate 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 . . . The credit herein provided shall be calculated from the date custody under the charge commenced to the date the sentence commences and shall not include any time that is credited against the . . . maximum term of any previously imposed sentence . . ."
Where, as here, a criminal defendant is confined in local custody within the City of New York, jail time credit is calculated by the New York City Commissioner of Correction and certified to the New York State Department of Correctional Services upon transfer of the defendant/inmate from local to state custody after sentencing. See Correction Law § 600-a. State DOCS authorities are bound by the jail time certified by the city commissioner and can neither add nor subtract from the time so certified. See Neal v. Goord, 34 AD3d 1142 , Torres v. Bennett, 271 AD2d 830 and Jarrett v. Coughlin, 136 Misc 2d 981.
Parole jail time credit, on the other hand, is a credit against the term or maximum term of an interrupted sentence for the time spend by a parolee in custody from the date of delinquency until the resumption of the interrupted sentence provided:
"(i) that such custody was due to an arrest or surrender based upon the delinquency; or
(ii) that such custody arose from an arrest on another charge which culminated in a dismissal or an acquittal; or
(iii) that such custody arose from an arrest on another charge which culminated in a conviction, but in such case, if a sentence of imprisonment was imposed, the credit allowed shall be limited to the portion of the time spent in custody that exceeds the period, term or maximum term of imprisonment imposed for such conviction." Penal Law § 70.40(3)(c).
Parole jail time credit is certified to DOCS officials by the New York State Board of Parole pursuant to Executive Law § 259-c(12).
Jail time credit and parole jail time credit can be viewed as mutually exclusive, with jail time credit being applied against the parolee's newly imposed sentence and parole jail time credit being applied against his or her prior interrupted sentence. Periods of time credited against one sentence cannot be credited against the other. See Jeffrey v. Ward, 44 NY2d 812. In the case at bar petitioner's 387-day period of incarceration in local custody was due to his February 19, 2007 arrest on new criminal charges which culminated, approximately one year later, in a conviction and the imposition of a determinate sentence in excess of the period of time he spent in local custody. It thus appears that the entire time period in question should have been credited as jail time against petitioner's 2008 determinate sentence rather than as parole jail time against his 2004 indeterminate sentence.
The narrow, fact-specific exception identified by this Court in Branchel v. LaClair, 29 Misc 3d 1107 would not appear to be applicable in the case at bar, particularly since the determination certifying petitioner's entitlement to parole jail time credit against his 2004 sentence for the period from February 24, 2007 to September 7, 2007 appears to have been issued after the 2008 determinate sentence had already be imposed.
In any event, petitioner's February 28, 2011 release from DOCS custody to post-release parole supervision has rendered this habeas corpus proceeding moot. See People ex rel Wilder v. Markley, 26 NY2d 648, People ex rel Jarvis v. Reilly, 56 AD3d 701 and People ex rel Morales v. Campbell, 298 AD2d 740.
Based upon all of the above, it is, therefore, the Decision of the Court and it is hereby
ADJUDGED, that the petition is dismissed.