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Matter of Canada v. McGinnis

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 1971
36 A.D.2d 830 (N.Y. App. Div. 1971)

Summary

In Canada, Special Term held that the 77 days of jail time between July 11, 1968 and September 26, 1968 should be credited against his second and longer sentence, thereby shortening the time thereon until his ultimate release.

Summary of this case from Matter of Elrod v. Flood

Opinion

April 12, 1971


In this special proceeding, the appeal is from a judgment of the Supreme Court, Dutchess County, dated June 25, 1970, which ordered appellants to credit petitioner with jail time toward a second indeterminate sentence imposed September 26, 1968 while he was serving an earlier indeterminate sentence. Judgment reversed, on the law, without costs, and petition dismissed on the merits. The findings of fact below are affirmed. Petitioner was serving time in Sing Sing Prison under an indeterminate sentence with a one year, three month minimum and a two year, six month maximum, imposed after his conviction of an attempt to commit grand larceny. He was transferred to the Manhattan House of Detention on July 11, 1968 to await trial on a burglary charge. On September 26, 1968 he received an indeterminate sentence with a seven year maximum on the burglary charge. In this proceeding he contends that the 77 days of jail time between July 11, 1968 and September 26, 1968 should be credited against his second and longer sentence, thereby shortening the time thereon until his ultimate release. Special Term held that petitioner was entitled to receive credit for the jail time toward the seven-year maximum term under section 70.30 Penal of the Penal Law. We reverse the determination on the ground that petitioner was serving a sentence under a prior conviction at the time of his transfer to the House of Detention and, consequently, the time served there was part of his first sentence. In such case, credit cannot be given for the same period of time toward the second sentence. Subdivision 3 of section 70.30 Penal of the Penal Law is clear in providing that jail time credit "shall not include any time that is credited against the term or maximum term of any previously imposed sentence to which the person is subject." (See, also, People ex rel. Coates v. Martin, 8 A.D.2d 688.) Rabin, P.J., Hopkins, Munder, Martuscello and Shapiro, JJ., concur.


Summaries of

Matter of Canada v. McGinnis

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 1971
36 A.D.2d 830 (N.Y. App. Div. 1971)

In Canada, Special Term held that the 77 days of jail time between July 11, 1968 and September 26, 1968 should be credited against his second and longer sentence, thereby shortening the time thereon until his ultimate release.

Summary of this case from Matter of Elrod v. Flood

In Canada, as in the case at bar, custody attached to the subsequent crime prior to the sentence on the first crime for which credit was allowed.

Summary of this case from Matter of Elrod v. Flood

In Canada the defendant's claim of constructive custody was not made until after he had begun serving his first sentence.

Summary of this case from Matter of Grier v. Flood
Case details for

Matter of Canada v. McGinnis

Case Details

Full title:In the Matter of WILLIAM CANADA, Respondent, v. PAUL D. McGINNIS, as…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 12, 1971

Citations

36 A.D.2d 830 (N.Y. App. Div. 1971)

Citing Cases

Matter of Kalamis v. Smith

But when, as here, the concurrent sentences have been imposed at different times, can the time between the…

Matter of Grier v. Flood

The more difficult question is whether the petitioner is entitled to credit for the period of time after his…