Matter of Russell v Annucci |
2015 NY Slip Op 06541 [131 AD3d 772] |
August 13, 2015 |
Appellate Division, Third Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
In the Matter of Frank F. Russell, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent. |
Frank F. Russell, Syracuse, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Collins, J.), entered September 26, 2014 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 jail time credit.
In 1992, 1995 and 2003, petitioner was convicted, respectively, of the crimes of
attempted assault in the second degree, criminal possession of a controlled substance in
the third degree and attempted criminal possession of a controlled substance in the fifth
degree. The indeterminate sentences for these crimes, ranging from 1
While on parole, petitioner was convicted of criminal possession of a controlled
substance in the third degree and criminal sale of a controlled substance in the third
degree and, on March 9, 2007, he was sentenced as a second felony offender to
concurrent prison terms of nine years, to be followed by 3
We affirm. Pursuant to Penal Law § 70.30 (3), jail time credit shall not be applied against a subsequent sentence when it has already been applied toward time served on a previous sentence (see Matter of Santiago v Germain, 121 AD3d 1479, 1480 [2014]; Matter of Blake v Dennison, 57 AD3d 1137, 1138 [2008], lv denied 12 NY3d 710 [2009]). Here, the record reveals that petitioner's 1992, 1995 and 2003 indeterminate sentences ran uninterrupted from the time that he was restored to parole supervision on January 4, 2006 until he was sentenced on March 9, 2007 for his 2007 crimes. It further discloses that the time he spent in local custody from March 7, 2006 until March 9, 2007 was credited toward his 1992, 1995 and 2003 sentences. In view of this, petitioner was not entitled to have such time also credited against his 2007 sentences (see People ex rel. Moultrie v Yelich, 95 AD3d 1571, 1572-1573 [2012]). Petitioner's reliance on Matter of Sparago v New York State Bd. of Parole (132 AD2d 881 [1987], mod 71 NY2d 943 [1988]) does not compel a contrary conclusion for here, unlike Sparago, petitioner's release on the indeterminate sentences was revoked by operation of law (see Executive Law § 259-i [3] [d] [iii]). Therefore, Supreme Court properly dismissed the petition.
Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur. Ordered that the judgment is affirmed, without costs.