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Petitioner Files For Judgment Pursuant to CPLR Article 78


This is a case for judgment pursuant to Article 78 of the CPLR that was created by the petitioner, including his June 23, 2010 Affidavit in Support of Order to Show Cause, verified on June 23, 2010 and filed in St. Lawrence County Clerk’s office on July 9, 2010. Petitioner, who is a prisoner at the Riverview Correctional Facility, is stimulating the time calculation connected with his current imprisonment in DOCS custody.

A show cause order was issued by the Court on July 23, 2010 which was received by the respondent who immediately filed his answer with exhibits. The respondent was directed by the court to supplement his answer by including therein his entitlement to parole jail time in order to determine the correct computation of his penalty.

On January 19, 2006 petitioner was convicted by the Supreme Court, Bronx County, to a fixed term of 2½ years, with 3 years post-release supervision, upon his conviction of the criminal offense of Attempted Robbery 2 in the second degree. He was received into DOCS custody on February 8, 2006, certified by the New York City Department of Correction as titled to 561 days of jail time credit (Penal Law §70.30(3) and Correction Law §600-a). At that time the maximum expiration date of petitioner’s 2½-year determinate term was calculated as January 21, 2007. On September 11, 2006 petitioner was conditionally released from DOCS custody to the judicially imposed 3-year period of post-release supervision. As of the September 11, 2006 conditional release date, DOCS officials calculated that petitioner still owed 4 months and 10 days against the 2½-year term of the determinate sentence. That time period was properly held in abeyance by DOCS officials pursuant to Penal Law §70.45(5)(a).

On November 19, 2007 petitioner was detained in linking with a new unlawfulviolation committed on that date but was free on bail after nine days in local imprisonment. Petitioner apparently remained at liberty until May 6, 2009 when he was taken into custody on a parole violation warrant and served with a Notice of Violation/Violation of Release Report. A final parole withdrawal hearing was conducted at Rikers Island on June 18, 2009. At that hearing an arrangement was reached whereby petitioner, who was represented by counsel, pled guilty to one parole violation charge and the three remaining charges were withdrawn with prejudice. Petitioner’s parole wascancelled with a modified misbehavior date of March 13, 2009 and aoffending time charge of hold to maximum expiration was enforced.

Petitioner remained in local custody following his final parole revocation hearing and on January 11, 2010 he was re-sentenced (original sentencing date was January 8, 2010) in Supreme Court, Queens County, as a second felony drug offender previously convicted of a violent felony offense (Penal Law §70.70(4)), to a determinate term of 2½ years, with 1 year post-release supervision, upon his conviction of the Criminal Possession of a Controlled Substance.

Petitioner was reverted into DOCS custody on February 1, 2010, certified by the New York City Department of Correction as entitled to 246 days of jail time credit covering the periods from November 19, 2007 to November 27, 2007 and June 9, 2009 through January 31, 2010. No parole jail time credit (Penal Law §70.40(3)(c)) was certified by the New York State Board of Parole pursuant to Executive Law §259-c(12).

The Court ruled that Penal Law §70.25(1)(a) provides, in relevant part, as follows:

“1. Except as provided in subdivisions… two-a… when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence… imposed by the court shall run either concurrently or consecutively with respect to… the undischarged term… in such a manner as the court directs at the time of sentence. If the court does not specify the manner in which a sentence imposed by it is to run, the sentence shall run as follows:

(a) an indeterminate or determinate sentence shall run concurrently with all other terms…” (Emphasis added).

The exclusion delivers that “when an unspecified or specified sentence of detention is enforced pursuant to… subdivision… four of section 70.70… and such person issubject to an undischarged… specified sentence of imprisonment enforced prior to the date on which the present criminal offense was dedicated, the court must enforce a sentence to run repeatedly with respect to such undischarged sentence.”

Since the 2010 specified sentence was enforced upon petitioner as a second felony drug offender previously imprisoned of a violent felony (Penal Law §70.70(4)), DOCS officials properly planned such sentence as running repeatedly with respect to the undischarged term (time held in abeyance) of petitioner’s 2006 sentence notwithstanding the fact that the 2010 sentencing court did not so specify. The only issue then to be resolved is the amount of time still owing against petitioner’s 2006 determinate term at the time he was received back into DOCS custody on February 1, 2010, following the 2010 conviction/sentencing.

the Court finds that petitioner is entitled to parole jail time credit against the 4 months and 10 days owed to the maximum term of his 2006 determinate sentence, properly held in abeyance by DOCS officials pursuant to Penal Law §70.45(5)(a), for the period from May 6, 2009 through June 8, 2009.

The Court granted the petition, but, only to the extent that the New York State Board of Parole is directed to certify the petitioner’s entitlement to parole jail time and the New York State Department of Correctional Services is directed to recalculate the maximum expiration and possible date of conditional release of the petitioner after the receipt of the certification.

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