Opinion
2016–1162.
03-29-2017
In the Matter of the Application of Lamont WILLIAMS,, Petitioner, v. NEW YORK STATE DIVISION OF PAROLE, Respondent.
This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the Petition of Lamont Williams, verified on August 31, 2016 and filed in the Clinton County Clerk's Office on September 12, 2016. Petitioner, who is an inmate at the Clinton Correctional Facility, is challenging the calculation of jail time credit as applied to parole release.
The Court issued an Order to Show Cause on September 19, 2016. The Court has reviewed the Answer and Return, together with a Letter–Memorandum by Christopher J. Fleury, Esq., Assistant Attorney General, dated December 21, 2016 and received on January 3, 2017. In further support of the petition, the Court has received and reviewed the petitioner's Reply verified on February 24, 2017 and received on February 28, 2017.
The respondent sought an extension to file the Answer and Return which was granted by letter-order dated December 8, 2016.
The petitioner sought an extension to file the Reply which was granted by letter-order dated December 30, 2016.
On October 18, 1999, the petitioner was sentenced by the Bronx County Supreme Court to an indeterminate term of incarceration for one (1) to three (3) years upon conviction of Attempted Criminal Sale of a Controlled Substance in the Third Degree, as well as a one (1) year definite term of incarceration to be served concurrently upon conviction of the crime of Criminal Possession of a Controlled Substance in the Seventh Degree. Petitioner was received into the custody of the New York State Department of Corrections (hereinafter referred to as "DOCCS") on October 26, 1999 wherein he was credited with 43 days of jail time for the period of September 11, 1997 to September 12, 1997 and September 15, 1999 to October 25, 1999. As such, the petitioner's maximum term to serve was 2 years, 10 months and 17 days, with a maximum expiration date of September 12, 2002. On June 1, 2000, the petitioner was released from custody to parole supervision. Thereafter, the petitioner was declared delinquent on July 26, 2000, which was also the date of his arrest for another felony. At that time, the petitioner owed 2 years, 1 month and 16 days of delinquent time to the maximum term.
The Department of Corrections merged with the Division of Parole to become the Department of Corrections and Community Supervision on March 31, 2011, thereby being referred to as DOCCS.
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On September 19, 2000, the petitioner was sentenced as a second felony offender by the Bronx County Supreme Court to an indeterminate term of incarceration for a period of two and one-half (2½) to five (5) years for the conviction of the crime of Criminal Sale of a Controlled Substance in the Fifth Degree. The sentence was to run consecutively to time owed to the previous sentence. As such, the petitioner's maximum aggregated time owed was 7 years, 1 month and 16 days. The petitioner was credited with 63 days of jail time for the period of July 26, 2000 to September 26, 2000. The petitioner was received by DOCCS on September 27, 2000. At that time, the petitioner's maximum expiration date for the aggregated sentences was September 9, 2007. On February 25, 2005, the petitioner was released from custody to parole supervision.
On September 19, 2005, the petitioner was declared delinquent. At that time, the petitioner owed 1 year, 11 months and 20 days delinquent time. Petitioner was returned to DOCCS custody on December 29, 2005 and he was credited with 9 days jail time credit for the period of December 20, 2005 to December 28, 2005. As such, the petitioner's adjusted maximum expiration date for the aggregated 1999 and 2000 sentences was December 10, 2007.
On January 18, 2006, the petitioner was again released from custody to parole supervision. The petitioner was discharged from the 1999 and 2000 sentences on December 10, 2007, his maximum expiration date. It is noted that upon his maximum expiration date of DOCCS custody, the petitioner was incarcerated in local custody (N.Y.C) awaiting disposition of his arrest on February 22, 2006.
On February 25, 2008, the petitioner was sentenced by the Bronx County Supreme Court to two (2) concurrent indeterminate terms of eight (8) years with five (5) years post-release supervision upon the conviction of Manslaughter in the First Degree and Assault in the Second Degree. Petitioner was received by DOCCS on March 14, 2008 and initially credited with 751 days of jail time credit for the period of February 22, 2006 to March 13, 2008. At that time, the petitioner's maximum expiration date was set to be February 22, 2014.
On December 31, 2012, the petitioner was released from custody to post-release supervision (hereinafter referred to as "PRS"). At that time, the time held in abeyance was 1 year, 1 month and 21 days. The petitioner was to serve five (5) years post-release supervision with a maximum expiration date of PRS which was calculated to be December 31, 2017. On June 20, 2015, the petitioner was declared delinquent.
On November 16, 2015, the petitioner was sentenced by the Bronx County Supreme Court as a Second Felony Offender to a determinate term of two (2) years incarceration with one (1) year of PRS, to be served consecutively to the 2008 sentence, for the conviction of Attempted Criminal Possession of a Controlled Substance in the Fifth Degree. On December 4, 2015 petitioner was received into the custody of DOCCS wherein he was credited with 112 days of jail time credit for the period of August 14, 2015 to December 3, 2015. At this time, the jail time credit for the 2008 sentence was reduced to 94 days for the period of December 11, 2007 (the date the petitioner was discharged from the 1999 and 2000 sentences) to March 13, 2008. As such, the adjusted maximum expiration date for the 2008 sentence was December 9, 2015. Insofar as the petitioner owed 2 years, 11 months and 8 days for time held in abeyance on the determinate terms of the 2008 sentence, in addition to the two years determinate, the petitioner then owed 4 years, 11 months and 8 days. Accounting for possible good time and subtracting the 112 jail time days served for the 2015 sentence, petitioner's current maximum expiration date for the outstanding 2008 and 2015 sentences is calculated to be July 19, 2020.
Petitioner commenced the instant action challenging the reduction of jail time credit from 751 days to 94 days relative to the 2008 sentence. Petitioner argues that the loss of 22 months of jail time was without notice or opportunity to be heard. Petitioner asserts that despite the respondent alleging various "declaration(s) of delinquency", the petitioner advises that he was never provided with same. Further, the petitioner asserts that pursuant to Sparago v. New York State Div. of Parole, 71 N.Y.2d 943, the petitioner's maximum time of incarceration cannot be extended by aggregating time owed for previous sentences. Finally, the petitioner argues that he has been unlawfully aggrieved as a result of the respondent's initial error in calculating the maximum expiration date.
Respondent argues that the petitioner is not entitled to jail time credit against a subsequent sentence pursuant to Penal Law § 70.30(3). Respondent provides an affirmation of Christine Lennard, Esq., Assistant Counsel of the Office of Sentencing Review, to explain why the 751 jail time days were reduced to 94 days. Furthermore, respondent asserts that the petitioner's reliance upon Sparago is misplaced insofar as the Appellate Division, Third Department has repeatedly rejected such reasoning.
" Penal Law § 70.30(3) specifically provides that jail time credit ‘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 term or maximum term of any previously imposed sentence ... to which the person is subject." ’ Brown v. Apple, 119 AD3d 1295, 1296.
Attorney Lennard indicates in her affirmation that the period of incarceration from February 22, 2006 to December 10, 2007 should have been appropriately credited towards the petitioner's 1999 and 2000 sentences rather than towards the 2008 sentence even though the 2008 sentence was derived from his February 22, 2006 arrest. The petitioner fails to recognize that he was arrested on February 22, 2006 while he was on parole supervision for the 1999 and 2000 sentences. Accordingly, although the petitioner was serving time in the custody of the New York City Correction Department at Rikers Island, the majority of such time was credited towards the sentence owed to DOCCS pursuant to the 1999 and 2000 sentences.
"A convicted person released from incarceration on parole continues to serve his or her sentence while on parole and earns credit toward the maximum expiration date of the sentence unless and until the Division of Parole declares that person to be delinquent and revokes parole ( Penal Law § 70.40 [l], [3][a] ). If parole is not revoked, a parolee is deemed to be in the legal custody of the Division of Parole "until expiration of the maximum term or period of sentence" ( Executive Law § 259–i[2][b] ). When a parolee is declared delinquent, however, the sentence is interrupted as of the date of delinquency, and the interruption continues until the parolee's return to an institution under the jurisdiction of the Department of Correctional Services ( Penal Law § 70.40[3][a] ). As a result, the term of the interrupted sentence is extended, beyond the original maximum expiration date, for a period of time equal to the delinquency period (internal citations omitted)." Oriole v. Saunders, 66 AD3d 280, 281.
Petitioner also argues that he was never provided with a Notice of Violation regarding his parole violation due to his subsequent arrest and therefore, he was deprived of an opportunity to be heard regarding the time assessment imposed. However, his arrest and subsequent conviction served as his notice of violation as a matter of law.
"Where, however, a parolee is convicted of committing a new felony while on parole and is sentenced to a new determinate or indeterminate term of imprisonment for that crime, he or she is subject to revocation of parole by operation of law based on the new felony, without any further hearing ( Executive Law § 259 —i[3][d][iii] ).
The Court of Appeals has recognized that the automatic revocation provision of Executive Law § 259 —i(3)(d)(iii) ‘was intended to dispense with the requirement of a final revocation hearing in only the one instance where the hearing served no apparent purpose—that is, where the parolee has been convicted of a new felony and has been sentenced to a new ... sentence. In those circumstances, a final parole revocation hearing would be a vain gesture because no fact finding by the Board of Parole would be necessary to ascertain that the parolee has in fact violated the conditions of his parole. The court of conviction and sentence would have already indisputably established that reality ( People ex rel. Harris v. Sullivan, 74 N.Y.2d 305, 310[1989] )." ’ Oriole v. Saunders, 66 AD3d 280, 282, 285.
Although the petitioner argues that he was denied any opportunity to be heard regarding the recalculation of the jail time credit, the petitioner is utilizing this petition to address such concerns. While he was not afforded a hearing, same is obviated as a matter of law and the calculation is not a discretionary determination before a tribunal. See, Penal Law § 70.30(3).
In addition, petitioner's reliance upon Matter of Sparago v. NYS Board of Parole, 132 A.D.2d 881, is misplaced. While there is a factual similarity to the matter at bar, to wit: that petitioner and Sparago were both arrested for a subsequent crime while on parole release, the similarities end there. In Sparago, a parole warrant was issued for Sparago on April 18, 1984 for an incident that occurred in January 1984 and the warrant was served upon Sparago the day after he was arrested on April 25, 1984 on charges of burglary and resisting arrest. The parole violation did not contain any reference to the arrest on April 25, 1984. Eventually, the original parole violation was withdrawn and a subsequent parole violation was substituted which included the charges for the arrest. Following a parole revocation hearing, the Parole Board revoked Sparago's parole and set a delinquency date for April 25, 1984. Sparago was later convicted and sentenced as a predicate felony offender on the charges arising on April 25, 1984. Thereafter, Sparago commenced an Article 78 petition challenging the calculation for his eligibility for parole, conditional release and maximum expiration dates. A stipulation was reached between Sparago and the Department of Correctional Services (the predecessor to DOCCS) wherein the parole revocation was vacated and the dates recalculated. The Appellate Division, Third Department recognized the peculiar situation that arose when Sparago again commenced a new action challenging the calculated dates:
"As a result of the unusual fact pattern created by the stipulation vacating the revocation of petitioner's parole despite his having been convicted of a felony committed while on parole, this case does not fit squarely within any of the relevant statutory provisions. Pursuant to Penal Law § 70.40(1)(a), petitioner continued to serve his 1980 sentences while on parole. CPL 430.10 provides that once a duly imposed sentence has commenced, it cannot be interrupted ‘[e]xcept as otherwise specifically authorized by law’. The parties agree that the purpose of the stipulation was to treat petitioner as though he was continually on parole status without revocation proceedings ever having been commenced." Sparago v. N.Y. State Bd. of Parole, 132 A.D.2d 881, 881–82 aff'd as modified, 71 N.Y.2d 943.
The Appellate Division further held that in light of the stipulation, Sparago's parole time was deemed to be running during his confinement following his April 1984 arrest and prior to sentencing on those charges. The Appellate Division carefully distinguished the factual pattern in Sparago as having arisen due to the stipulation which appears to have been without regard to the statutory provisions for interrupting sentences.
It is also noted, however, that although the Appellate Division, Third Department, issued its decision in Sparago almost 30 years ago, the relevant holding therein has not been favorably cited 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 holding in Sparago. See e.g. Russell v. Annucci, 131 AD3d 772, Parker v. Annucci, 130 AD3d 1115, Murphy v. Wells, 95 AD3d 1575, lv. denied 19 NY3d 811 and DuBois v. Goord, 271 A.D.2d 874. The facts and circumstances of the Russell case, in particular, appear to be quite similar to those in the case at bar. Although the facts and circumstances of the other cases cited above (Parker, Murphy and DuBois) are factually distinguishable from those in the case at bar, the unifying feature in all four cases (and others) is that the Appellate Division, Third Department, applied the proscription against double crediting set forth in Penal Law § 70.30(3) with respect to periods of time spent by individuals in local custody, pending the disposition of new criminal charges, notwithstanding the fact that such individuals' prior sentences ran uninterrupted during such periods of time.
Based upon all of the above, it is, therefore, the decision of the Court and it is hereby
ADJUDGED, that the petition is dismissed.