Matter of Lynch v. Smith ( 2014 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: December 11, 2014                   518774
    ________________________________
    In the Matter of RICKEY LYNCH,
    Appellant,
    v                                     MEMORANDUM AND ORDER
    BRANDON J. SMITH, as
    Superintendent of Greene
    Correctional Facility, et
    al.,
    Respondents.
    ________________________________
    Calendar Date:   October 21, 2014
    Before:   Lahtinen, J.P., McCarthy, Rose, Devine and Clark, JJ.
    __________
    Rickey Lynch, Freeport, appellant pro se.
    Eric T. Schneiderman, Attorney General, Albany (Marcus J.
    Mastracco of counsel), for respondents.
    __________
    Appeal from a judgment of the Supreme Court (Elliott III,
    J.), entered May 7, 2014 in Greene County, which dismissed
    petitioner's application, in a proceeding pursuant to CPLR
    article 78, to review a determination of the Department of
    Corrections and Community Supervision calculating petitioner's
    jail time credit.
    In October 2011, petitioner was sentenced by the County
    Court of Suffolk County to an aggregate prison term of 3½ to 7
    years upon his conviction of, among other things, criminal
    possession of a forged instrument in the second degree. In July
    2013, he was sentenced by Supreme Court in Nassau County to a
    prison term of 2 to 4 years, to be served concurrently with the
    2011 sentence, upon his conviction of burglary in the third
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    degree. Petitioner's release dates were calculated based upon
    his 2011 sentence, which had the longest unexpired time to run at
    the time that the 2013 sentence was imposed (see Penal Law
    § 70.30 [1] [a]). He was credited with 641 days of jail time for
    the period of January 9, 2010 to July 13, 2010 (186 days) for
    time served in Nassau County from the time of his arrest on the
    charge resulting in his 2013 conviction until he was released on
    bail, and for the period of July 27, 2010 to October 24, 2011
    (455 days) from the time of his arrest in Suffolk County on the
    charges forming the basis of his 2011 conviction until he was
    received into the custody of the Department of Corrections and
    Community Supervision. His parole eligibility date was
    determined to be July 18, 2013 – that is, petitioner was
    immediately eligible for parole by operation of Penal Law § 70.03
    (1) (a) once credited for the additional jail time served in
    Nassau County – and his maximum expiration date was calculated as
    January 18, 2017, with an earliest conditional release date of
    September 18, 2014 based upon possible merit time.
    Petitioner commenced this CPLR article 78 proceeding
    seeking an additional 526 days of jail time credits, purportedly
    representing the total time that he was in custody on the Nassau
    County charges. Petitioner asserted that, for the time frame
    that he was being held on charges that culminated in more than
    one sentence, he was entitled to have the credit applied against
    each sentence – or, in other words, to be credited twice for the
    jail time that he was held on both the Nassau County and Suffolk
    County indictments. Supreme Court dismissed the petition,
    prompting this appeal.
    Petitioner asserts that he is entitled to additional jail
    time credit against his 2013 sentence that was imposed in Nassau
    County. His maximum expiration date, however, is not calculated
    based upon that sentence. Rather, because his 2011 and 2013
    sentences were imposed concurrently, "[t]he maximum term . . .
    merge[s] in and [is] satisfied by discharge of the term which has
    the longest unexpired time to run" (Penal Law § 70.30 [1] [a]).
    At the time that his 2 to 4-year sentence was imposed in 2013,
    the 3½ to 7-year sentence on his 2011 conviction in Suffolk
    County had the longest unexpired time to run; therefore,
    crediting jail time against his 2013 sentence would not affect
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    his maximum expiration date. Accordingly, inasmuch as petitioner
    received credits against his 2011 sentence for all time served in
    connection with the charges that culminated in both his 2011 and
    2013 sentences, Supreme Court properly determined that his
    maximum expiration date was accurately calculated (see Matter of
    Brown v Apple, 119 AD3d 1295, 1296 [2014]; see also People ex
    rel. Moultrie v Yelich, 95 AD3d 1571, 1573 [2012]; Matter of
    Blake v Travis, 35 AD3d 925, 925 [2006]).
    Lahtinen, J.P., McCarthy, Rose, Devine and Clark, JJ.,
    concur.
    ORDERED that the judgment is affirmed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 518774

Judges: Lahtinen, McCarthy, Rose, Devine, Clark

Filed Date: 12/11/2014

Precedential Status: Precedential

Modified Date: 11/1/2024