Opinion
RJI #16-1-2011-0238.49 INDEX #2011-537 ORI # NY016015J
08-18-2011
In the Matter of the Application of DERRICK MOULTRIE,#io-A-3047, Petitioner, for Judgment Pursuant to Article 70 of the Civil Practice Law and Rules v. BRUCE YELICH, Superintendent, Bare Hill Correctional Facility, and DR. DORA SCHRIRO, Commissioner, NYC Department of Correction, Respondents.
DECISION AND JUDGMENT
This proceeding was originated by the Petition for a Writ of Habeas Corpus of Derrick Moultrie, filed in the Franklin County Clerk's office on May 31, 2011. Petitioner, who is an inmate at the Bare Hill Correctional Facility, is challenging the computation of jail time credit associated with his current incarceration in DOCS custody. The Court issued an Order to Show Cause on June 3, 2011 and has received an reviewed the Return of the state respondent Yelich, dated July 8, 2011, as well as the Affirmation in Opposition of Faye A. Yelardy, Esq., Assistant General Counsel, New York City Department of Correction, dated July 14, 2011 and submitted on behalf of city respondent Schriro. The Court has also received and reviewed petitioner's "Due Process Objections," dated July 13, 2011 and filed in the Franklin County Clerk's office on July 14, 2011.
On May 20, 2002 petitioner was sentenced in Supreme Court, New York County, as a second felony offender, to a controlling indeterminate sentence of 4½ to 9 years upon his convictions of the crimes of Conspiracy 4° (4 counts), Attempted Intimidating a Victim 1°, Attempted Burglary 2°, Attempted Assault 2°, Criminal Sale of a Controlled Substance 3° (2 counts) and Criminal Possession of a Controlled Substance 4°. Petitioner was received into DOCS custody on July 17, 2002 certified as entitled to 426 days of jail time credit (Penal Law §70.30(3)). The maximum expiration date of his controlling 4½ to 9 year indeterminate sentence was ultimately calculated as failing on May 15, 2010.
On December 3, 2008, while at liberty under parole supervision from his 2002 sentence, petitioner was arrested in connection with new criminal charges. No parole delinquency was pursued pending court action. On May 15, 2010 petitioner was discharged from parole supervision upon reaching the maximum expiration date of his 2002 sentence. Throughout this period petitioner apparently remained incarcerated in local custody in connection with the new criminal charges.
On May 25, 2010 petitioner was sentenced in Supreme Court, New York County, as a second drug/prior violent felony offender, to a controlling determinate term of 2½ years, with 2 years post-release supervision, upon his convictions of the crimes of Criminal Possession of a Controlled Substance 5° and Criminal Possession of a Controlled Substance 7°. He was received back into DOCS custody on June 21, 2010 originally certified as entitled to 565 days of jail time credit covering the entire period from his December 3, 2008 arrest until he was received back into DOCS custody. At that time DOCS officials calculated the maximum expiration and conditional release dates of petitioner's 2010 sentences as May 31, 2011 and January 21, 2011, respectively.
On November 9, 2010 the New York City Department of Correction issued an amended jail time certificate reducing petitioner's jail time credit to 36 days covering the period from May 15, 2010, when petitioner reached the maximum expiration date of his 2002 sentences, to June 21, 2010, when he was received back into DOCS custody. The reduction of petitioner's jail time credit from 565 days to 36 days, which prompted DOCS officials to re-calculate the maximum expiration and conditional release dates of petitioner's 2010 sentences as November 14, 2012 and July 4, 2012, respectively, is the subject of this proceeding.
The calculation of jail time credit is controlled by Penal Law §70.30(3) which provides, in relevant part, as follows:
". . .[T]he maximum term of an indeterminate sentence imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence . . . The credit herein provided shall be calculated from the date custody under the charge commenced to the date the sentence commences and shall not include any time that is credited against the . . . maximum term of any previously imposed sentence . . ."Where, as here, the criminal defendant was confined in local custody in the City of New York, jail time credit is calculated by the Commissioner of the New York City Department of Correction and certified to the New York State Department of Correctional Services upon transfer of the inmate from local to state custody. See Correction Law §600-a. State DOCS authorities are bound by the jail time certified by the city commissioner and can neither add nor subtract from the time so certified. See Neal v. Goord, 34 AD3d 1142, Torres v. Bennett, 271 AD2d 830 and Jarrett v. Coughlin, 136 Misc 2d 981. Where the city commissioner amends a previously issued jail time certificate, DOCS officials are bound by the most recently issued certificate. See Villanueva v. Goord, 29 AD3d 1097.
In the Petition for a Writ of Habeas Corpus filed on May 31, 2011 no specific legal challenge to the above-referenced reduction in jail time credit is articulated. Rather, petitioner merely sets forth the underlying facts and circumstances of his case and concludes that the reduction " . . . was irrational, arbitrary, unreasonable, and capricious to maintain this petitioner in custody beyond the original time period he was sentenced to do. Time computation from NY City Rikers Island amounts to 564 [565] days. D.O.C.S. is not crediting me with 529 days. I have been in custody since December 3, 2008." In his Reply, however, petitioner cites Sparago v. New York State Board of Parole, 132 AD2d 881, mod 71 NY2d 943, and argues, in effect, that since the running of his 2002 sentence was never interrupted by a parole delinquency, the time he spent in local custody from his December 3, 2008 arrest to the May 15, 2010 maximum expiration date of such sentence should not be considered as "credited" against the 2002 sentence within the meaning of Penal Law §70.30(3). As stated by the Appellate Division, Third Department, in Sparago, "[s]uch a crediting, in our view, occurs when the previously imposed sentence is duly interrupted, with jail time accruing during the period of interruption." 132 AD2d 881 at 883.
In addition to its determination with respect to the jail time credit issue, the Appellate Division in Sparago also determined that Mr. Sparago's most recently imposed (1984) sentence had to run consecutively with respect to the undischarged term of his previously imposed (1980) sentence. It also found that Mr. Sparago's " . . .maximum release date was properly calculated by aggregating the undischarged portion of the 1980 maximum and the 1984 maximum." 132 AD2d 881 at 882. There is nothing in the Court of Appeals decision in Sparago (71 NY2d 943) to suggest that such court was called upon to review the determination of the Appellate Division, Third Department, with respect to the jail time credit issue. After noting that the Appellate Division had reversed Supreme Court with regard to the jail time credit issue, the Court of Appeals further noted that "[t]he Appellate Division agreed with Supreme Court on the issue now before us , however, holding that because petitioner's sentences were to run consecutively . . .they had to be aggregated . . . It [the Appellate Division] did not address which aggregation method used by respondents was proper, but implicitly held the recalculated sentence was computed using the correct method. We agree with the Appellate Division that petitioner's sentences had to be aggregated, but disagree, under these facts, as to the aggregation method which should be used." 71 NY2d 943 at 945 (citations omitted) (emphasis added). Indeed, the Court of Appeals' only specific mention of the jail time credit issue occurred after it set forth its reasoning with respect to the sentence aggregation issue, stating as follows: "This [aggregation] method not only effectuates the stipulation which provided petitioner's parole would not be revoked, but also credits him with the 217 days of jail time to which the Appellate Division found him entitled." Id at 946. It is therefore the finding of this Court (Supreme Court, Franklin County) that the Sparago holding with respect to the jail time credit issue, as well as the rationale underlying that holding, is that of the Appellate Division, Third Department, rather than the Court of Appeals.
While the rationale of the Appellate Division, Third Department in Sparago might arguably be applied to the facts and circumstances of this case, it is noted that the specific fact pattern in Sparago (which the Third Department deemed "unusual") bears little resemblance to the fact pattern in the case at bar. It is also noted that although the Appellate Division, Third Department issued its decision in Sparago more than 24 years ago, the relevant holding therein apparently remains uncited in any officially-reported case. More importantly, since 1987 the Appellate Division, Third Department, has issued a number of decisions seemingly at odds with the relevant rationale expressed in Sparago. See Mena v. Fischer, 84 AD3d 1611, Hot v. New York State Department of Correctional Services, 79 AD3d 1383, lv den 16 NY3d 710, Villanueva v. Goord, 29 AD3d 1097 and DuBois v. Goord, 271 AD2d 874.
Hot and Villanueva, to be sure, involve fact patterns dissimilar to both Sparago and the case at bar. Each of these cases involve individuals who had already commenced serving definite or indeterminate sentences and who were subsequently sentenced to indeterminate or determinate sentences. In each case the Appellate Division, Third Department, found that jail time credit against the subsequent sentence(s) was unavailable with respect to time spent in local custody after the previously-imposed definite or indeterminate sentence had commenced. Although neither Hot nor Villanueva involved any parole delinquency issues, it is still noteworthy that, contrary to Sparago, the proscription against double crediting set forth in Penal Law §70.30(3) was applied notwithstanding the fact that the previously imposed sentences were not interrupted but continued to run during the periods of time for which jail time credit was sought.
Mena and DuBois on the other hand both involve fact patterns similar to the fact pattern in the case at bar. Each of these cases involved individuals who spent time in local custody in connection with new criminal charges while on parole from previously-imposed sentences. In each case, moreover, the previously imposed sentence(s) expired prior to the imposition of sentence(s) in connection with the new criminal charges. Despite the similar fact pattern Mena is only of tangential interest since it involved a parole eligibility date calculation issue rather than a jail time credit issue and, therefore, the proscription against double crediting set forth in Penal Law §70.30(3) was not specifically considered. The Mena court, after determining that Mr. Mena's parole was not revoked by operation of law (Executive Law §259-i(3)(d)(iii)) since his previously imposed sentence expired prior to sentencing on the subsequent charges, found that he " . . . continued to serve his [previously-imposed] 1989 sentence after his incarceration [in local custody] in November 1993 [in connection with the new criminal charges] until that [previously-imposed] sentence expired on its own terms on December 28, 1994. Thus, the Department properly credited all prison time thereafter served to the new commitment on his 1995 sentences." Mena v. Fischer, 84 AD3d 1611 (emphasis added) (citing Hot, Villianueva and DuBois). No mention was made of any credit against Mr. Mena's subsequently-imposed 1995 sentence for the time he spent incarcerated in local custody prior to the December 28, 1994 expiration of his previously-imposed 1989 sentence.
In DuBois the jail time credit issue was front and center. The petitioner in DuBois, who was serving an indeterminate sentence of 5 to 15 years imposed in 1979, was released on parole but subsequently violated and returned to DOCS custody with an adjusted maximum expiration date of May 14, 1989. In August of 1988 Mr. DuBois was transferred to county jail pending disposition of criminal charges stemming from an incident that had occurred while he was on parole. On October 13, 1988 he was again released from DOCS custody to parole supervision but remained in county jail in connection with the new charges. He was ultimately sentenced on those charges on an unspecified date in 1989 to an indeterminate sentence of 10 to 20 years. On June 26, 1989 Mr. DuBois was received back into DOCS custody to begin serving his 1989 sentence certified as entitled to 46 days of jail time credit against such sentence covering the time period from May 14, 1989 (the adjusted maximum expiration date of his 1979 sentence) to his June 26, 1989 return to DOCS custody. Mr. Dubois contended, however, that he was entitled to jail time credit for the entire time spent in local custody from August 11, 1988 to June 26, 1989. The Appellate Division, Third Department, rejected this contention. Without specifically mentioning Penal Law §70.30(3), the DuBois court found as follows:
" . . . [P]etitioner was not entitled to a credit against the 1989 sentence for time served in County Jail prior to the expiration of the 1979 sentence because that period of incarceration was credited against petitioner's 1979 sentence . . . Because petitioner continued to serve the 1979 sentence despite his October 13, 1988 release on parole, the jail time served following his parole release and prior to the maximum expiration date of the 1979 sentence may not be credited towards the 1989 sentence . . ." 271 AD2d 874 at 875-876 (citations omitted).
Based upon the decisions of the Appellate Division, Third Department in Mena, Hot, Villanueva and, particularly, DuBois, this Court is not persuaded that the Sparago rationale is applicable under the facts and circumstance of the case at bar. This Court finds that the proscription against double crediting set forth in Penal Law §70.30(3) is applicable notwithstanding the fact that petitioner's 2002 sentence was not interrupted but continued to run while petitioner was confined in local custody from December 3, 2008 until May 15, 2010, when the maximum expiration date of such sentence was reached. Accordingly, this Court further finds that the respondent Commissioner, New York City Department of Correction, did not err in excluding that time period in the amended jail time certificate.
Based upon all of the above, it is, therefore, the decision of the Court and it is hereby
ADJUDGED, that the petition is dismissed. Dated: August 18, 2011 at
Indian Lake, New York
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S. Peter Feldstein
Acting Justice, Supreme Court