The opinion
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 2, 2015 519620
________________________________
In the Matter of DEMETRIUS
PARKER,
Appellant,
v
MEMORANDUM AND ORDER
ANTHONY J. ANNUCCI, as Acting
Commissioner of Corrections
and Community Supervision,
Respondent.
________________________________
Calendar Date: May 5, 2015
Before: Peters, P.J., McCarthy, Rose and Clark, JJ.
__________
Demetrius Parker, Sonyea, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.
__________
Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered September 14, 2015 in Sullivan County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of the Erie County Sheriff
calculating petitioner's jail time credit.
In 2006, petitioner was convicted of criminal possession of
a controlled substance in the third degree and criminal
possession of a weapon in the third degree. He was sentenced
concurrently to two years in prison on both charges, to be
followed by postrelease supervision of two and three years,
respectively. Petitioner was received into the custody of the
Department of Corrections and Community Supervision (hereinafter
DOCCS) on July 14, 2006.
-2- 519620
Thereafter, he was released by DOCCS to postrelease
supervision on two separate occasions and both times he was
declared delinquent. At the time of his second release in 2009,
the postrelease supervision maximum expiration date on his 2006
sentences was June 14, 2011. After the second declaration of
delinquency was issued on April 1, 2010, petitioner served time
in local custody and no final revocation hearing was held.
Consequently, his 2006 sentences continued to run uninterrupted
and he completed serving them on June 14, 2011.
On June 21, 2011, petitioner was sentenced to five years in
prison and five years of postrelease supervision upon his
conviction of attempted criminal possession of a weapon in the
second degree. He was received by DOCCS on July 5, 2011 at which
time he was given 331 days of jail time credit toward his 2011
sentence. This credit, however, was subsequently reduced to 20
days after it was discovered that petitioner had already received
credit for certain time periods, specifically April 8, 2010 to
April 18, 2010 and August 19, 2010 to June 14, 2011, toward his
2006 sentences. Petitioner commenced this CPLR article 78
proceeding challenging the calculation of his jail time credit
and, following joinder of issue, Supreme Court dismissed the
petition. This appeal ensued.
We affirm. Penal Law § 70.30 (3) provides, in relevant
part, that jail time credit "shall be calculated from the date
custody under the charge commenced to the date the sentence
commences and shall not include any time that is credited against
the term or maximum term of any previously imposed sentence or
period of post-release supervision." Here, the time periods that
petitioner was in local custody between March 15, 2009 and June
14, 2011 were credited toward the postrelease supervision
segments of his 2006 sentences, resulting in his completion of
the sentences on June 14, 2011. Inasmuch as petitioner had
already received credit for these time periods, they should not
have been counted toward his 2011 sentence as well (see Matter of
Brown v Apple, 119 AD3d 1295, 1296 [2014]; Matter of Booker v
Laffin, 98 AD3d 1213, 1213-1214 [2012]). Therefore, we find that
the calculation of petitioner's jail time credit was proper.
-3- 519620
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 result as that case is factually
distinguishable from this case. Finally, we have considered
petitioner's remaining contentions and find them to be
unpersuasive.
Peters, P.J., McCarthy, Rose and Clark, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court