Calendar Date: May 8, 2018
Rembert, Dannemora, appellant pro se.
Barbara D. Underwood, Attorney General, Albany (Frank Brady
of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Melkonian, J.), entered
July 7, 2017 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to
CPLR article 78, to review a determination of respondent
calculating petitioner's jail time credit.
2007, petitioner was sentenced to an aggregate prison term of
four years followed by five years of postrelease supervision
stemming from his conviction of, among other things,
attempted robbery in the second degree. On December 17, 2009,
petitioner was released to postrelease supervision with a
remaining portion of his maximum prison term held in abeyance
until successful completion of postrelease supervision or his
return to custody.
October 2010, petitioner was declared delinquent. On or about
December 6, 2010, petitioner was arrested on charges in Kings
County. On December 6, 2011, while the Kings County charges
were still pending, a final revocation hearing resulted in
petitioner being restored to postrelease supervision the
following day. Initially, respondent credited
petitioner's 2007 sentence with the 366 days of jail time
given the period of time that petitioner had spent in custody
from December 6, 2010 through December 6, 2011. Thereafter,
on February 21, 2012, petitioner was sentenced on his
conviction of the Kings County charges to seven concurrent
prison terms of 15 years, followed by five years of
postrelease supervision, to run consecutively to the 2007
sentence . Respondent applied 462 days of jail
time credit for the period of December 2, 2010 through March
7, 2012 against the calculation of the February 2012
sentence. Because the 366 days of jail time credit could not
be added to both the 2007 sentence and the 2012 sentence,
respondent recalculated the 2007 sentence to remove the 366
days previously credited thereto.
2016, the City of New York Department of Correction
(hereinafter NYDOC) amended petitioner's jail time credit
in connection with his February 2012 sentence by excluding 76
days between December 7, 2011 (the date when petitioner
resumed his postrelease supervision) and February 21, 2012
(the date that the first 2012 sentence was imposed),
resulting in a reduction of the total jail time credit from
462 days to 386 days. Petitioner commenced this CPLR article
78 proceeding challenging the calculation of his jail time
credit on the 2007 sentence. Following joinder of issue,
Supreme Court dismissed the petition. Petitioner now appeals.
affirm. Pursuant to Penal Law § 70.40 (3) (c), the time
a person spends in custody from the time of delinquency to
the time that his or her sentence resumes will be credited
against the term or maximum term of the interrupted sentence.
However, where "such custody arose from an arrest on
another charge which culminated in a conviction, ... if a
sentence of imprisonment was imposed, the credit allowed
shall be limited to the portion of the time spent in custody
that exceeds the period, term or maximum term of imprisonment
imposed for such conviction" (Penal Law § 70.40 
[c] [iii]). Petitioner was initially credited with 366 days
of jail time toward his 2007 sentence, which reduced both the
prison time held in abeyance and the time owed on the
postrelease supervision. NYDOC, however, certified that 462
days of jail time credit - which included the 366 days
credited toward the 2007 sentence - were to be credited
toward the February 2012 sentence. As a result, respondent,
which is bound by the terms of a jail time certificate
(see Matter of McLamb v Fischer, 70 A.D.3d 1090,
1091 ), properly adjusted petitioner's 2007
sentence in compliance with Penal Law § 70.40 (3) (c)
(iii) and did not, as urged by petitioner, improperly extend
his 2007 sentence (see Matter of Davidson v State of N.Y.
Dept. of Correctional Servs., 53 A.D.3d 741, 742-743
, lv denied 11 N.Y.3d 706');">11 N.Y.3d 706 ; Matter
of Washington v Dennison, 42 A.D.3d 830, 831 ).
the 2016 amendment by NYDOC that reduced petitioner's
jail time credit on the February 2012 sentence by 76 days,
respondent explained that the 76 days of jail time credit was
applied to petitioner's 2007 sentence inasmuch as his
2007 sentence resumed running on December 7, 2011, when he
was restored to postrelease supervision until such time as he
was sentenced in February 2012. As such, that same period
could not be applied toward the February 2012 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 ).
Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ., concur.
that the judgment is affirmed, without costs.