Opinion
520059
08-13-2015
In the Matter of Frank F. RUSSELL, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Frank F. Russell, Syracuse, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Frank F. Russell, Syracuse, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, ROSE and LYNCH, JJ.
Opinion Appeal from a judgment of the Supreme Court (Collins, J., entered September 26, 2014 in Albany County) which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Corrections and Community Supervision calculating petitioner's jail time credit.
In 1992, 1995 and 2003, petitioner was convicted, respectively, of the crimes of attempted assault in the second degree, criminal possession of a controlled substance in the third degree and attempted criminal possession of a controlled substance in the fifth degree. The indeterminate sentences for these crimes, ranging from 1 ½ to 3 years to 4 ½ to 9 years in prison, ran consecutively and, after they were imposed, petitioner was periodically released to parole supervision and later declared delinquent. He was finally restored to parole supervision on January 4, 2006, at which time the maximum expiration date of his 1992, 1995 and 2003 sentences was September 28, 2008.
While on parole, petitioner was convicted of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree and, on March 9, 2007, he was sentenced as a second felony offender to concurrent prison terms of nine years, to be followed by 3 ½ years of postrelease supervision, which sentences were to run consecutively to his 1992, 1995 and 2003 sentences. He was declared delinquent and his parole was revoked as of March 9, 2007. Petitioner was received into the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS) on March 14, 2007. At such time, he was granted 374 days of jail time credit for the period that he was in local custody from March 7, 2006 to March 15, 2007, giving him a maximum expiration date for his 2007 crimes of March 6, 2015. After it was discovered that the time he spent in local custody from March 7, 2006 to March 9, 2007 had been credited toward his 1992, 1993 and 2003 sentences, the credit was reduced to seven days for the period March 9, 2007 to March 15, 2007, giving him a maximum expiration date for his 2007 crimes of March 8, 2016. Petitioner requested DOCCS to recalculate his jail time credit, but it concluded that his jail time credit was properly reduced. He commenced this CPLR article 78 proceeding as a result and, following joinder of issue, Supreme Court dismissed the petition. This appeal ensued.
That portion of the 2007 sentence imposing 3 ½ years of postrelease supervision was reduced on appeal to three years (People v. Russell, 83 A.D.3d 1463, 919 N.Y.S.2d 721 [2011], lv. denied 17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103 [2011] ).
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We affirm. Pursuant to Penal Law § 70.30(3), jail time credit shall not be applied against a subsequent sentence when it has already been applied toward time served on a previous sentence (see Matter of Santiago v. Germain, 121 A.D.3d 1479, 1480, 995 N.Y.S.2d 648 [2014] ; Matter of Blake v. Dennison, 57 A.D.3d 1137, 1138, 868 N.Y.S.2d 827 [2008], lv. denied 12 N.Y.3d 710, 881 N.Y.S.2d 660, 909 N.E.2d 583 [2009] ). Here, the record reveals that petitioner's 1992, 1995 and 2003 indeterminate sentences ran uninterrupted from the time that he was restored to parole supervision on January 4, 2006 until he was sentenced on March 9, 2007 for his 2007 crimes. It further discloses that the time he spent in local custody from March 7, 2006 until March 9, 2007 was credited toward his 1992, 1995 and 2003 sentences. In view of this, petitioner was not entitled to have such time also credited against his 2007 sentences (see People ex rel. Moultrie v. Yelich, 95 A.D.3d 1571, 1572–1573, 944 N.Y.S.2d 319 [2012] ). Petitioner's reliance on Matter of Sparago v. New York State Bd. of Parole, 132 A.D.2d 881, 518 N.Y.S.2d 75 (1987), mod. 71 N.Y.2d 943, 528 N.Y.S.2d 817, 524 N.E.2d 138 (1988) does not compel a contrary conclusion for here, unlike Sparago, petitioner's release on the indeterminate sentences was revoked by operation of law (see Executive Law § 259–i[3][d][iii] ). Therefore, Supreme Court properly dismissed the petition.
ORDERED that the judgment is affirmed, without costs.