Calendar Date: May 8, 2018
Smith, Malone, appellant pro se.
Barbara D. Underwood, Attorney General, Albany (Brian D.
Ginsberg of counsel), for respondents.
Before: Lynch, J.P., Devine, Clark, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Collins, J.), entered
September 5, 2017 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to
CPLR article 78, to review a determination of the Department
of Corrections and Community Supervision, among other things,
calculating petitioner's jail time credits.
2010, petitioner was convicted of robbery in the third degree
and sentenced as a second felony offender to a prison term of
2½ to 5 years, and he began serving his sentence
(hereinafter the 2010 sentence). During his release to parole
supervision in 2013, he was returned to the custody of the
Department of Corrections and Community Supervision
(hereinafter DOCCS) to complete his 2010 sentence after
violating the conditions of his release and was later
arrested for committing additional robbery-related crimes
earlier that year while on release. On October 29, 2013,
petitioner was transferred to the New York City Department of
Correction (hereinafter NYCDOC) in connection with the 2013
robbery-related crimes and, in 2014, he was convicted of
those crimes and sentenced to concurrent prison terms of
3½ to 7 years and 2 to 4 years (hereinafter the 2014
sentence). Petitioner was returned to the custody of DOCCS on
July 2, 2014. After he served the undischarged portion of his
2010 sentence, he began serving his 2014 sentence, which he
is currently serving.
2015, petitioner commenced a CPLR article 78 proceeding
challenging DOCCS's calculation of his sentences and the
consecutive treatment of his 2010 and 2014 sentences. This
Court upheld the dismissal of that petition by Supreme Court
(Hard, J.), holding, among other things, that the 2014
sentence was required to run consecutively to the
undischarged 2010 sentence, by operation of law (see
Matter of Smith v Stanford, 142 A.D.3d 1208, 1209-1210
, citing Penal Law § 70.25 [2-a]). After that
first proceeding had been decided by Supreme Court, NYCDOC
issued an amended jail time certificate rescinding an earlier
certificate and effectively determining that petitioner was
not entitled to jail time credit toward the 2014 sentence for
the period between October 29, 2013 and November 2, 2014,
i.e., 246 days. DOCCS thereafter recalculated
petitioner's 2014 sentence, with other jail time credits,
establishing a conditional release date (May 8, 2019) and a
maximum expiration date (March 28, 2022).
then commenced this CPLR article 78 proceeding contending,
among other things, that DOCCS should have treated the 2010
and 2014 sentences as running concurrently. Supreme Court
(Collins, J.) dismissed the petition, and petitioner now
affirm. With regard to petitioner's claim that the 2010
and 2014 sentences should run concurrently rather than
consecutively, this exact argument was raised and expressly
rejected by this Court in his prior CPLR article 78
proceeding (id. at 1209-1210). Accordingly, this
contention is precluded under principles of res judicata
(see Matter of Martin v Central Off. Review Comm. of N.Y.
State Dept. of Correctional Servs., 69 A.D.3d 1237, 1238
; see also Matter of Josey v Goord, 9 N.Y.3d
386, 389-390 ; Matter of Gee v Desimone, 128
A.D.3d 1116, 1117 ; Matter of Green v Selsky,
56 A.D.3d 831, 832 , lv denied 12 N.Y.3d 703');">12 N.Y.3d 703
; Matter of Salahuddin v Goord, 23 A.D.3d 787,
788 , lv denied 6 N.Y.3d 704');">6 N.Y.3d 704 ).
further find that, contrary to petitioner's claim, DOCCS
correctly applied the amended certificate issued by NYCDOC,
which rescinded the 246-day jail time credit for the period
in issue (October 29, 2013 to July 2, 2014), and determined
that he was not eligible for credit for this period toward
his 2014 sentence . Initially, petitioner could not have
raised this claim in his earlier special proceeding, as the
amended certificate was not issued until October 5, 2015,
which was after Supreme Court (Hard, J.) issued a judgment in
the earlier proceeding. Thus, this argument is not precluded
by res judicata (see Parker v Blauvelt Volunteer Fire
Co., 93 N.Y.2d 343, 347-349 ). However, as Supreme
Court (Collins, J.) correctly concluded in addressing the
claim in this proceeding, petitioner was not entitled to jail
time credit toward his 2014 sentence for this period because
this time had already been credited toward his 2010 sentence.
That is, petitioner was still serving the undischarged
portion of his 2010 sentence when he was transferred to
NYCDOC on October 29, 2013 and, thus, he received credit for
that time toward his 2010 sentence and could not also receive
credit for that time toward his subsequent, consecutive 2014
sentence (see Penal Law § 70.30 ; Matter
of Maldonado v Howard, 148 A.D.3d 1501, 1502 ,
lv denied 29 N.Y.3d 916');">29 N.Y.3d 916 ). Petitioner's
remaining claims have been examined and, to the extent that
they are preserved, have been found to be without merit.
J.P., Devine, Clark, Mulvey and Aarons, JJ., concur.
that the judgment is affirmed, without costs.