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McLamb v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


February 4, 2010

IN THE MATTER OF JEFFERSON MCLAMB, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENT.

Appeal from a judgment of the Supreme Court (Work, J.), entered June 22, 2009 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services computing petitioner's jail time credit.

MEMORANDUM AND ORDER

Calendar Date: December 17, 2009

Before: Mercure, J.P., Spain, Rose, Malone Jr. and Stein, JJ.

In February 1988, petitioner was sentenced in Suffolk County Court, upon his conviction of attempted forgery in the second degree, to a prison term of 90 days and five years of probation. In August 1990, petitioner was sentenced to an aggregate prison term of 20 years to life for his conviction of robbery in the first degree and attempted robbery in the third degree. Subsequently, petitioner's 1988 sentence was vacated, and he was resentenced as a second felony offender to a prison term of 2 to 4 years for his 1988 forgery conviction, to run consecutively to his 1990 sentences (People v McLamb, 45 AD3d 870 [2007], lv denied 9 NY3d 1036 [2008]). As a result of various jail terms served between 1987 and 1990, including time spent pursuant to his original 1988 sentence, petitioner was credited with a total of 851 days of jail time served. Believing that the computation by the Department of Correctional Services (hereinafter DOCS) was in error, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition, prompting this appeal.

We affirm. A review of petitioner's sentence computation by DOCS reveals that he was properly credited with the 851 days of jail time served to which he was entitled. To the extent that petitioner argues that there is additional jail time for which he is entitled to receive credit, including for a period of incarceration served in 1969, we note that petitioner has provided no documentation to substantiate such claims, and DOCS is bound by the jail time certifications provided by Suffolk County and may not add or subtract therefrom (see Matter of Ramos v Goord, 58 AD3d 921, 922 [2009]; Matter of Torres v Bennett, 271 AD2d 830, 831 [2000]). Petitioner's remaining contentions have been examined and found to be without merit.

Mercure, J.P., Spain, Rose, Malone Jr. and Stein, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100204

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