Alan Seidler, Nyack, for defendant.
Eliot Spitzer, Attorney General (Stacy Sabatinni of counsel), for New York State Department of Correctional Services. Linda Lutz for New York City Department of Correction.
Plummer E. Lott, J.
This case presents the issue whether the New York State Department of Correctional Services may ignore an order of a Federal District Court judge to run a federal sentence concurrently with a State sentence. The issue involves interpretations of a New York statute, rules regarding comity, and the
supremacy provision and the Full Faith and Credit Clause of the Federal Constitution.
On March 3, 1995, the defendant pleaded guilty to criminal possession of a weapon in the third degree.  As part of the plea bargain this court promised the defendant that it would sentence him to the minimum period of incarceration permitted by law for a second violent felon, i.e., a term of imprisonment having a minimum of 2 1/2 years and a maximum of five years. Because of the impending Easter holiday and the defendant's desire to spend the time with his family, sentencing was scheduled for May 2, 1995. The defendant's bail was continued.
On April 19, 1995, while awaiting sentencing, the defendant sold crack to a federal confidential informant. He also agreed to make an additional sale of crack to the informant on May 1, 1995. On May 1, 1995, because the defendant's supplier could not supply the agreed-upon drugs and the sale could not be immediately consummated, agents of the Federal Government arrested the defendant and charged him with conspiracy to possess with intent to distribute cocaine base.
On June 22, 1995, the federal authorities produced the defendant in this court for sentencing. The court then sentenced the defendant as previously promised.
On May 31, 1996, United States District Court Judge Block accepted the defendant's guilty plea and sentenced the defendant to the custody of the Bureau of Prisons for 70 months to run concurrently with the State sentence, the minimum sentence under the federal guidelines given the defendant's category. The court stated that after completing his State incarceration, if it be less than 70 months, then he would be returned to the Federal Government for completion of the balance of the jail portion of its sentence.
The defendant first served his federal sentence and was then returned to New York for service of the State sentence. The New York State Department of Correctional Services has refused to credit the defendant with any jail time served in a federal facility.
As the United States Court of Appeals, Second Circuit, said, " [t]he law governing prisoners subject to multiple sentences,
particularly prisoners subject to multiple state and federal sentences, is hardly a model of clarity" (McCarthy v Doe, 146 F.3d 118, 120 [2d Cir]).
Before considering the principles of comity and federal constitutional law, the court should first look to New York State statutes so as to avoid, if possible, any constitutional problems (see, Matter of Beach v Shanley, 62 N.Y.2d 241, 254 [courts should not decide constitutional questions, if the matter can be disposed of on a nonconstitutional basis]).
Penal Law § 70.25
Penal Law § 70.25 governs whenever multiple punishments are imposed. Subdivision (4) reads as follows:
" When a person, who is subject to any undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction, is sentenced to an additional term or terms of imprisonment by a court of this state, the sentence or sentences imposed by the court of this state, subject to the provisions of subdivisions one, two and three of this section, shall run either concurrently or consecutively with respect to such undischarged term in such manner as the court directs at the time of sentence. If the court of this state does not specify the manner in which a sentence imposed by it is to run, the sentence or sentences shall run consecutively."
The last sentence of this subdivision states without qualification that where a court of this State is silent as to whether a sentence runs concurrently with a sentence from another jurisdiction, then the sentences are to run consecutively with the foreign sentence. However, this subdivision does not apply to this case. Reading the entire section as a whole unit, it is clear that the last sentence only applies when at the time of New York's sentencing there is an " undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction" (see, McCarthy v Doe, supra, 146 F3d, at 121-122).
At common law it was presumed that if a court imposing sentence failed to state whether a period of imprisonment was to run concurrently or consecutively with another sentence simultaneously or previously imposed by another court in the same jurisdiction, then the terms of incarceration were deemed to run concurrently with each other (People ex rel. Winelander v Denno, 9 A.D.2d 898, 899). This rule did not apply to sentences
of imprisonment imposed by courts of another jurisdiction (id.; People ex rel. Kendall v Follette, 47 A.D.2d 546, 548). Thus, where a court is silent and the applicable statutes are silent as to whether a sentence is concurrent or consecutive with a sentence imposed by a different sovereignty, then the law presumes that the sentences run consecutively to one another (id.; Thomas v Whalen, 962 F.2d 358, 362 n 6 [4th Cir]; Gomori v Arnold, 533 F.2d 871, 875 [3d Cir]; State v Petersen, 305 Minn 478, 483, 235 N.W.2d 801, 804; Grimes v Greer, 223 Ga 628, 157 S.E.2d 260; Santifer v State, 1976 WL 360, 1976 Ark LEXIS 2001 [Ark Sup Ct, Feb. 2, 1976, Jones, J.]; Herman v Brewer, 193 N.W.2d 540, 544 [Iowa]; People ex rel. Hesley v Ragen, 396 Ill 554, 562-563, 72 N.E.2d 311, 314-315; see also, Annotation, Right to Credit on State Sentence 90 ALR3d 408, 412, § 4 [b] [cases cited]). This is consistent with New York's policy that " [s]ervice in a Federal prison will not expiate an offense against the dignity of the State" (People v Ingber, 248 N.Y. 302, 306).
Interpreting the statute as giving binding effect to a foreign jurisdiction's sentence would be inconsistent with New York's common law, and infringe on New York's sovereign right to implement its penal sanctions. Absent evidence that the Legislature intended to abrogate the common ...