Matter of Nunez v State of N.Y. Dept. of Corr. & Community Supervision

Matter of Nunez v State of N.Y. Dept. of Corr. & Community Supervision 2015 NY Slip Op 00940 Decided on February 5, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 5, 2015
519082

[*1]In the Matter of ALVELCIO NUNEZ, Appellant,

v

STATE OF NEW YORK DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.

Calendar Date: December 2, 2014
Before: Lahtinen, J.P., Garry, Devine and Clark, JJ.

Avelcio Nunez, Wallkill, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (DeBow, J.), entered May 9, 2014 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying petitioner's grievance.

On February 12, 2008, while on parole for crimes he was convicted of in 2005, petitioner was charged with additional crimes and incarcerated, but no parole violation proceedings were commenced. On July 1, 2008, petitioner's adjusted maximum sentence on his 2005 convictions expired and he was discharged from parole on those charges while still incarcerated and awaiting trial on the new charges. He was convicted on the new charges and sentenced in February 2010 to an aggregate term of 8½

years in prison. He was received into respondent's custody on February 12, 2010 and credited with 731 days of jail time, including the 141 days from February 12, 2008 to July 1, 2008. However, petitioner's jail time credit was subsequently reduced to 590 days after it was determined that the subject 141 days should have been credited against the 2005 sentence. Petitioner filed a grievance challenging the recomputation of his jail time credit, and his grievance was ultimately denied by the Central Office Review Committee. He then commenced this CPLR article 78 proceeding, which was dismissed by Supreme Court following joinder of issue. This appeal by petitioner ensued and we now affirm.

The 141 days of jail time earned from the date of incarceration on the new charges (February 12, 2008) until the maximum expiration date of the 2005 sentence (July 1, 2008) was [*2]properly credited toward the 2005 sentence (see Penal Law § 70.30 [3]; Matter of Booker v Laffin, 98 AD3d 1213, 1213-1214 [2012]), and petitioner is not entitled to have that same credit applied toward the sentences imposed on his 2010 convictions (see People ex rel. Moultrie v Yelich, 95 AD3d 1571, 1573 [2012]).

Lahtinen, J.P., Garry, Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.