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In re Faiello

Supreme Court of New York, Fourth Department

September 27, 2013

IN THE MATTER OF DEAN FAIELLO, PETITIONER-APPELLANT,
v.
BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, AND DORA B. SCHRIRO, COMMISSIONER, NEW YORK CITY DEPARTMENT OF CORRECTIONS, RESPONDENTS-RESPONDENTS.

Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered May 9, 2011 in a proceeding pursuant to CPLR article 78. The judgment denied the amended petition.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT.

MICHAEL A. CARDOZO, CORPORATION COUNSEL, NEW YORK CITY (KRISTIN M. HELMERS OF COUNSEL), FOR RESPONDENT-RESPONDENT DORA B. SCHRIRO, COMMISSIONER, NEW YORK CITY DEPARTMENT OF CORRECTIONS.

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, AND VALENTINO, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:

Petitioner appeals from a judgment denying his CPLR article 78 amended petition seeking review of the determination calculating his jail time credit. We affirm. Inasmuch as "Penal Law § 70.30 (3) draws no distinction between an inmate who is detained in New York and one who is detained elsewhere, an inmate who has spent time in federal custody, another state's custody or even another country's custody is entitled to jail time credit so long as, among other things, the inmate provide[s] a certified record of that detention' " (Matter of Ramos v Goord, 58 A.D.3d 921, 922, quoting Matter of Guido v Goord, 1 N.Y.3d 347, 349 n 3). Petitioner has not produced a certified record of his detention in Costa Rica, and thus there is no basis to disturb the calculation of petitioner's jail time credit (see id.; cf. CPLR 4542). Petitioner's contention concerning the impact of CPLR 2101 on the determination herein is without merit because that statute is inapplicable here, and his remaining contentions are raised for the first time on appeal and therefore are not properly before us (see Ciesinski v Town of Aurora, 202 A.D.2d 984, 985). Finally, we note that our determination of this appeal does not preclude petitioner from again seeking relief with respect to his jail time credit, upon production of the requisite documentation.


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