Ivy v. Goord

31 A.D.3d 1204, 818 N.Y.S.2d 720

Opinion

Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered July 12, 2005 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 seeking additional jail time credit toward his sentence of 25 years to life imposed in 1993. Petitioner was sentenced in 1988 to three concurrent terms of incarceration, the longest of which was 2 Vs to 7 years. The record establishes that petitioner was released on parole after serving a portion of that sentence and that he absconded, resulting in the imposition of two additional periods of jail time based on his violations of parole. He was arrested in 1992 on a charge of murder, and his conviction of that crime resulted in the 1993 sentence of 25 years to life that, by operation of law, was to run concurrently with the 1988 sentence. Petitioner alleged in his petition that he is entitled to credit on both the 1988 sentence and the 1993 sentence based on the 522 days of jail time served between the time of his arrest in 1992 and his return to the Department of Correctional Services in 1993. That contention lacks merit. As Supreme Court properly determined, petitioner is not entitled to jail time credit against the 1993 sentence for the jail time that was credited against the 1988 sentence (see Matter of McCormack v Kuhlmann, 188 AD2d 779, 780 [1992]). Additionally, “jail time credit [against the 1993 sentence] ‘shall not include any time that is credited against the term or maximum term of any previously imposed sentence to which [petitioner] is subject’ ” (Matter of Jeffrey v Ward, 44 NY2d 812, 814 [1978]), here, the 1988 sentence. Present—Pigott, Jr., P.J., Scudder, Gorski, Martoche and Hayes, JJ.