Opinion
524786
03-15-2018
The PEOPLE of the State of New York EX REL. Erick ALLEN, Appellant, v. Bruce YELICH, as Superintendent of Bare Hill Correctional Facility, Respondent.
Michael E. Cassidy, Prisoner's Legal Services of New York, Plattsburgh, for appellant. Eric T. Schneiderman, Attorney General, Albany (Brian Ginsberg of counsel), for respondent.
Michael E. Cassidy, Prisoner's Legal Services of New York, Plattsburgh, for appellant.
Eric T. Schneiderman, Attorney General, Albany (Brian Ginsberg of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Devine and Clark, JJ.
MEMORANDUM AND ORDER
Clark, J.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered November 30, 2016 in Franklin County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. In June 2005, petitioner was sentenced as a second felony offender to four years in prison and five years of postrelease supervision for his conviction of attempted criminal possession of a weapon in the third degree. Following his release to postrelease supervision in July 2010, petitioner absconded and, in January 2011, was declared delinquent. In May 2011, petitioner was arrested in New Jersey on unrelated charges, and, in satisfaction of those charges, he pleaded guilty to assaulting a law enforcement officer and resisting arrest. The New Jersey trial court sentenced petitioner to concurrent prison terms of four years for the assault conviction and 3 to 7 years for the resisting arrest conviction. At sentencing, the trial court specified that the sentences it imposed on the convictions were to run concurrently with one another and "to run concurrent[ly] with the sentence imposed on [the] New York State parole violation." In January 2016, petitioner was released from the New Jersey Department of Corrections and returned to a New York jail. Petitioner thereafter pleaded guilty to violating his postrelease supervision and was given a 15–month time assessment. After being returned to the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS) in April 2016, petitioner filed a petition, and then an amended petition, for a writ of habeas corpus for immediate release based on the claim that he had reached the maximum expiration of his sentence. Petitioner specifically claimed that he was wrongfully denied credit in New York for his incarceration in New Jersey from June 2012 to January 2016. Supreme Court denied the petition, and petitioner now appeals.
Initially, as the record reflects that petitioner was released to postrelease supervision during the pendency of this appeal, habeas corpus relief is not available (see People ex rel. Turner v. Sears, 63 A.D.3d 1404, 1405, 882 N.Y.S.2d 330 [2009] ; People ex rel. McAdoo v. Taylor, 31 A.D.3d 847, 848, 818 N.Y.S.2d 847 [2006] ). However, inasmuch as this matter calls into question the calculation of petitioner's maximum expiration date and period of his postrelease supervision (see People ex rel. Speights v. McKoy, 88 A.D.3d 1039, 1040, 930 N.Y.S.2d 498 [2011] ; People ex rel. Turner v. Sears, 63 A.D.3d at 1405, 882 N.Y.S.2d 330 ), we decline to dismiss this appeal as moot and instead convert the CPLR article 70 proceeding to a CPLR article 78 proceeding (see CPLR 103[c] ; People ex rel. Howard v. Yelich, 87 A.D.3d 772, 773, 928 N.Y.S.2d 609 [2011] ; People ex rel. Rodriguez v. Warden, Rikers Is. Correctional Facility, 61 A.D.3d 494, 494, 878 N.Y.S.2d 5 [2009] ; cf. People ex rel. Baron v. New York State Dept. of Corr. Servs., 98 A.D.3d 1307, 1308, 951 N.Y.S.2d 786 [2012], lv denied 20 N.Y.3d 855, 958 N.Y.S.2d 698, 982 N.E.2d 618 [2012] ).
We are not persuaded by petitioner's contention that DOCCS improperly declined to credit him for the period of out-of-state incarceration that he served in New Jersey from June 2012 to January 2016. When an individual in the custody of DOCCS is alleged to have violated the terms of his or her parole release and has been declared delinquent, "the declaration of delinquency shall interrupt the person's sentence as of the date of delinquency [,] and such interruption shall continue until the return of the person to an institution under the jurisdiction of [DOCCS]" ( Penal Law § 70.40[3][a] ; see Matter of Miller v. New York State Dept. of Corr. & Community Supervision, 105 A.D.3d 677, 677, 965 N.Y.S.2d 404 [2013] ; Matter of Brown v. Annucci, 60 A.D.3d 1223, 1225, 875 N.Y.S.2d 332 [2009] ; Matter of Davidson v. State of N.Y. Dept. of Correctional Servs., 53 A.D.3d 741, 742, 861 N.Y.S.2d 471 [2008], lv denied 11 N.Y.3d 706, 868 N.Y.S.2d 598, 897 N.E.2d 1082 [2008] ; Matter of Washington v. Dennison, 42 A.D.3d 830, 831, 840 N.Y.S.2d 458 [2007] ). Here, when petitioner was declared delinquent on his parole release in January 2011, his New York sentence was interrupted and did not resume until he was returned to the custody of DOCCS in January 2016 (see Penal Law § 70.40[3] ; Matter of Smith v. Annucci, 146 A.D.3d 1266, 1267, 45 N.Y.S.3d 705 [2017] ; People ex rel. Howard v. Yelich, 87 A.D.3d at 773, 928 N.Y.S.2d 609 ; cf. Penal Law § 70.30[7] ). Thus, DOCCS's recalculation and adjustment of petitioner's maximum expiration date did not impermissibly extend or modify petitioner's five-year period of postrelease supervision (see Matter of Smith v. Annucci, 146 A.D.3d at 1267, 45 N.Y.S.3d 705). While the New Jersey trial court intended for petitioner's New Jersey sentence to run concurrently with the undischarged period of his New York sentence, "it was incumbent upon the [New Jersey] authorities to return him to New York to effectuate that intent" ( People ex rel. Howard v. Yelich, 87 A.D.3d at 773, 928 N.Y.S.2d 609 ; see Penal Law § 70.40[3] ; Matter of Smith v. Annucci, 146 A.D.3d at 1267, 45 N.Y.S.3d 705; see also Penal Law §§ 70.20[3] ; 70.30[2–a]; Matter of Hall v. LaValley, 115 A.D.3d 1125, 1128–1129, 982 N.Y.S.2d 598 [2014, McCarthy, J., dissenting] [noting that while both the federal and state courts intended their respective sentences to run concurrently with one another, the federal court failed to designate the state correctional facility as the place or jurisdiction in which the defendant could serve his federal prison sentence] ).
When a defendant in state or non-federal custody receives a federal prison sentence—and the federal district court expressly indicates at sentencing that the federal prison sentence will run concurrently with the state sentence—the Federal Bureau of Prisons "will designate the [s]tate correctional facility as the place for the defendant to serve his [or her] [f]ederal sentence" (Dutton v. United States Attorney Gen., 713 F.Supp.2d 194, 199–200, 203 [W.D. N.Y.2010] ; see 18 USC §§ 3584 [a]; 3585[a]; 3621[b]; Abdul–Malik v. Hawk–Sawyer, 403 F.3d 72, 75–76 [2d Cir.2005] ; Clapper v. Langford, 186 F.Supp.3d 235, 238 [N.D. N.Y.2016] ).
Accordingly, inasmuch as the record before us does not reflect any error in DOCCS's recalculation of the maximum expiration of petitioner's postrelease supervision date, it will not be disturbed. Petitioner's remaining contentions have been considered and found to be without merit.
ORDERED that the judgment is modified, on the law, without costs, by converting the petition to a CPLR article 78 proceeding, and, as so modified, affirmed.
Garry, P.J., Egan Jr., Lynch and Devine, JJ., concur.