Matter of Smith v. Annucci , 45 N.Y.S.3d 705 ( 2017 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 26, 2017 522881
________________________________
In the Matter of DANIEL L.
SMITH,
Appellant,
v
MEMORANDUM AND ORDER
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
________________________________
Calendar Date: November 29, 2016
Before: McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.
__________
Daniel L. Smith, Marcy, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for respondent.
__________
Appeal from a judgment of the Supreme Court (DeBow, J.),
entered March 8, 2016 in Albany 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
maximum expiration date of his period of postrelease supervision.
Petitioner, having completed his determinate prison term,
commenced serving his five-year period of postrelease supervision
in Pennsylvania, with a maximum expiration date of September 23,
2015. On December 9, 2010, petitioner was declared delinquent
due to an alleged violation of the terms of his release.
Thereafter, petitioner was convicted in Pennsylvania on an
assault charge and served a period of incarceration. He was also
-2- 522881
convicted on a separate disorderly conduct charge, while an
inmate in Pennsylvania. On December 18, 2012, the Department of
Corrections and Community Supervision (hereinafter DOCCS) was
advised that petitioner had completed the sentences ultimately
imposed in Pennsylvania and was available to be returned to New
York, thereby commencing petitioner's parole jail time credit on
this date. Following a final revocation hearing that resulted in
a 30-month assessment being imposed, petitioner was returned to
the custody of DOCCS on February 8, 2013. Petitioner was
credited with 52 days parole jail time from December 18, 2012
through February 7, 2013, and the maximum expiration date of his
postrelease supervision was recalculated to September 30, 2017.
Petitioner commenced this CPLR article 78 proceeding challenging
the maximum expiration date of his postrelease supervision.
Following joinder of issue, Supreme Court dismissed the petition
and this appeal ensued.
We are unpersuaded by petitioner's contention that DOCCS
altered the five-year period of postrelease supervision imposed
and exceeded its jurisdiction when the maximum expiration date of
petitioner's postrelease supervision was recalculated. The five-
year period of postrelease supervision was not, as urged by
petitioner, in any way altered or modified. Rather, petitioner's
postrelease supervision was interrupted when petitioner was
declared delinquent in December 2010 and did not resume until he
returned to DOCCS's custody in February 2013 (see Penal Law
§ 70.40 [3] [a]; People ex rel. Howard v Yelich, 87 AD3d 772, 773
[2011]). Petitioner's assertion that he is entitled to
additional parole jail time credit toward his New York
postrelease supervision due to an alleged error by Pennsylvania
in holding him in excess of the sentence imposed in that
jurisdiction with regard to the assault conviction is not
substantiated by the record, particularly in view of the
additional disorderly conduct conviction. In any event, any
claim of excess confinement in Pennsylvania must initially be
resolved in that jurisdiction. As the record does not reflect
any error in DOCCS's assessment of parole jail time credit in the
recalculation of the maximum expiration of petitioner's
postrelease supervision date, it will not be disturbed.
Petitioner's remaining contentions are without merit.
-3- 522881
McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.,
concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court