Matter of Lynch v. Smith

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 11, 2014 518774
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In the Matter of RICKEY LYNCH,
Appellant,
v MEMORANDUM AND ORDER
BRANDON J. SMITH, as
Superintendent of Greene
Correctional Facility, et
al.,
Respondents.
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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.
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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