The People & c. ex rel. John F. Ryan, on Behalf of Richard Shaver, Respondent,
Kevin Cheverko, & c., et al., Appellants.
Linda M. Trentacoste, for appellants.
Anne Bianchi, for respondent.
New York State Defenders Association et al.; New York State Sheriffs' Association, amici curiae.
We hold that, when Penal Law § 70.30 (2) (b) limits consecutive definite sentences to an aggregate term of two years imprisonment, jail time credit and good time credit should be deducted from that two-year aggregate term rather than the aggregate term imposed by the sentencing court.
On October 24, 2011, petitioner Richard Shaver was convicted of two counts of petit larceny and one count of criminal possession of stolen property in the fifth degree. He was sentenced to a one-year definite term of imprisonment for each of his petit larceny convictions, imposed to run concurrently, plus a third one-year definite term of imprisonment for his stolen property conviction, imposed to run consecutively to his other sentences. On June 12, 2012, petitioner was convicted of one count of escape in the second degree and one count of grand larceny in the fourth degree for incidents that occurred prior to his October 2011 convictions. He was sentenced to a one-year term of imprisonment for each conviction, imposed to run consecutively with each other and with the prior sentences. In all, petitioner was sentenced to five definite one-year terms of imprisonment, four of which were imposed to run consecutively. All sentences were to be served at the Westchester County Jail.
To calculate petitioner's consecutive definite sentences, respondents Commissioner of the Westchester County Department of Correction and the Warden of Westchester County Jail employed Penal Law § 70.30 (2) (b), which states in pertinent part:
"If the sentences run consecutively and are to be served in a single institution, the terms are added to arrive at an aggregate term and are satisfied by discharge of such aggregate term, or by service of two years imprisonment plus any term imposed for an offense committed while the person is under the sentences, whichever is less."
Pursuant to this statute, respondents added petitioner's definite sentences to arrive at an aggregate term of four years, or 1, 460 days. Respondents awarded petitioner 106 days of jail time credit (for time served prior to the commencement of his October 2011 sentences) as well as 486 days of good time credit. They then applied these credits against petitioner's court-imposed aggregate term of imprisonment, reducing it from 1, 460 days to 868 days. Because this 868-day term was longer than "two years imprisonment" (Penal Law § 70.30  [b]), respondents adjusted petitioner's discharge date to October 24, 2013 — exactly two years from the date his sentences commenced.
Petitioner filed an article 78 petition seeking to compel respondents to recalculate his sentence by applying his jail time and good time credits against the two-year term imposed under Penal Law § 70.30 (2) (b). Supreme Court denied the petition and dismissed the proceeding, stating that petitioner's proposed recalculation was not supported by the "plain language" of section 70.30 (2) (b) or any other authority.
The Appellate Division, among other things, reversed the Supreme Court judgment and ordered petitioner's immediate release from Westchester County Jail. Relying on its decision in Matter of Serfaty v Jablonsky (236 A.D.2d 413, 414 [2d Dept 1997]), the court held that, "when the two-year limit on the aggregate term of consecutive definite sentences provided by [Penal Law § 70.30 (2) (b)] applies, a person's release date must be calculated based on a two-year aggregate term of incarceration, " and any jail time or good time credits must therefore "be applied against this two-year aggregate term" (102 A.D.3d 990, 991 [2d Dept 2013] [internal quotation marks omitted]). We agree and we now affirm.
Penal Law § 70.30 (2) governs the calculation of multiple definite sentences. The statute "does not affect the authority of the courts to impose multiple sentences or govern the lengths of individual sentences" but instead it provides "direction to the correctional authorities as to how to compute the time which must be served under the sentences" (People v Teti, 41 A.D.2d 841, 841 [2d Dept 1973] [citation omitted]; see also People v Moore, 61 N.Y.2d 575, 578 ; Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law Art 70, at 245).
Section 70.30 (2) (b) places a two-year limit on the term of consecutive definite sentences served at a single institution by a person who has committed no offense while under the sentences . The Temporary Commission on Revision of the Penal Law and Criminal Code, which drafted identical language for a predecessor statute, indicated that the two-year limit was intended as an "aggregate term" that effectively replaces a court-imposed aggregate term exceeding two years (see Commission Staff Notes on Proposed Penal Law art 30.30 [renum art 70.30], reprinted in 1982—1983 Gilbert Criminal Law and Procedure, at 2A—30 [stating that "(p)aragraph (b) provides a limitation upon the aggregate term of consecutive definite sentence" and that "(t)he proposed law limits the aggregate term to two years"]). Thus, the statute does not require that a prisoner serve exactly "two years imprisonment" whenever the two-year limit applies (Penal Law § 70.30  [b]), as respondents contend. Rather, it directs correctional authorities to calculate the sentences "based on a two-year aggregate term of incarceration" (Matter of Serfaty, 236 A.D.2d at 414; see also Teti, 41 A.D.2d at 841; People v Matthews, 73 Misc.2d 643, 644-645 [NY City Crim Ct 1973]).
Having determined that Penal Law § 70.30 (2) (b) imposes a two-year aggregate term of imprisonment, we turn to whether this two-year aggregate term may be reduced by jail time and good time credit a prisoner has earned while incarcerated . Penal Law § 70.30 (3) (b) and (4) (b) provide that, where a prisoner is serving consecutive definite sentences, jail time and good time credit must be applied against the prisoner's aggregate term of imprisonment (see Penal Law § 70.30  [b];  [b] [emphasis ...