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In the Matter of Michael Booker v. Timothy Laffin

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


September 27, 2012

IN THE MATTER OF MICHAEL BOOKER, APPELLANT,
v.
TIMOTHY LAFFIN, SUPERINTENDENT OF WALLKILL CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered January 12, 2012 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Superintendent of Wallkill Correctional Facility calculating petitioner's jail time credit.

The opinion of the court was delivered by: Rose, J.

MEMORANDUM AND ORDER

Calendar Date: September 11, 2012

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

In 1998, while on parole from a 1995 conviction, petitioner was arrested and charged with a new offense. Petitioner remained incarcerated in county jail while he awaited resolution of the 1998 offense, but no parole violation proceedings were commenced. On January 30, 1999, the 1995 sentence reached its maximum expiration and petitioner's parole was discharged. Petitioner was thereafter convicted of the charges underlying his 1998 arrest and sentenced to a term of imprisonment. Although initially credited with 314 days of jail time towards his 1999 sentence, petitioner's term was recalculated and the credit was reduced to 82 days after it was determined that 232 days had been credited to his 1995 term and thus could not also be credited to his 1999 term. Petitioner commenced this proceeding pursuant to CPLR article 78 challenging the recalculation. Supreme Court dismissed the petition and petitioner now appeals.

Petitioner argues that, because his parole from the 1995 conviction was never revoked, all of the jail time credit earned between his arrest in 1998 and sentencing in 1999 should have been applied toward the 1999 sentence. We disagree. Any jail time served prior to the maximum expiration date of the 1995 sentence was properly credited toward that sentence until it expired on its own terms on January 30, 1999 (see Penal Law § 70.30 [3]). Thus, the 1999 sentence was properly credited only with jail time served after the expiration of the 1995 sentence (see Matter of Murphy v Wells, 95 AD3d 1575, 1576 [2012], lv denied ___ NY3d ___ [Sept. 11, 2012]; Matter of Mena v Fischer, 84 AD3d 1611, 1611 [2011], lv denied 17 NY3d 710 [2011]; Matter of Du Bois v Goord, 271 AD2d 874, 875-876 [2000]).

Mercure, J.P., Spain, Malone Jr. and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120927

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