Opinion
February 25, 1974
Order, Supreme Court, New York County, made December 27, 1972, denying the motion of defendant-appellant to vacate sentence imposed upon him by the late Justice Backer on May 26, 1971, unanimously modified, in the interest of justice, by reduction of that sentence to a term equivalent to the period of 10 years less 428 days, and otherwise affirmed. Defendant was arrested in Kings County on July 14, 1969, for a crime committed there. He was arrested in New York County on August 4, 1969, for murder, disposed of by his plea of guilty to manslaughter on May 3, 1971, and his sentence to 10 years in State Prison on May 26, 1971, by Justice Backer. He had theretofore been sentenced in Kings County on March 24, 1970, to a three-year term. Justice Backer promised defendant that he would receive jail time credit against the sentence of 10 years for every day served on the Kings County charge. The indorsement on the indictment calls for concurrence of the sentences, and the minutes both of plea and sentence can be read in no way except to indicate that Justice Backer made a flat promise to defendant that he would receive that jail time credit. That promise should be enforced. ( Santobello v. New York, 404 U.S. 257.) The difficulty is that the Correction Department, standing on the strict language of subdivision 3 of section 70.30 Penal of the Penal Law, refuses to give credit for the time served on the Kings County sentence, i.e., the 428 days served on the sentence imposed there, running from the date of that sentence to the date of Justice Backer's sentence. It is in the interest of justice to carry out Justice Backer's promise in substance, without doing violence to the cited Penal Law section and fulfilling his intention by appropriate reduction of the sentence imposed by him.
Concur — Markewich, J.P., Nunez, Kupferman, Steuer and Lane, JJ.