Scruggs v. Hanslmaier

Appeal from a judgment of the Supreme Court (Kane, J.), entered August 30, 1994 in Sullivan County, which converted petitioner’s application for a writ of habeas corpus into a proceeding pursuant to CPLR article 78 and dismissed petitioner’s application to review a determination of respondent computing petitioner’s sentence.

In June 1978, petitioner was convicted after a jury trial of 13 counts of a 25-count indictment and was sentenced to 121/2 to 25 years in prison. He served time in prison from September 14, 1978 to November 26, 1979 pending a trial on the remaining counts of the indictment. After a second trial, defendant was convicted of the remaining counts and was sentenced to 25 years to life in prison, but this sentence was subsequently vacated in 1989 and he was resentenced to 121/2 to 25 years, nunc pro tunc, as of November 26, 1979. Upon review of the record, we reject defendant’s claim that respondent failed to properly credit him with time served pending his second trial. Rather, we find that respondent calculated defendant’s sentence in accordance with the applicable provisions of the Penal Law.

Mikoll, J. P., Mercure, Crew III, White and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.