Matter of Batista v Walsh

[*1] Matter of Batista v Walsh 2006 NY Slip Op 51589(U) [12 Misc 3d 1195(A)] Decided on August 16, 2006 Supreme Court, Sullivan County LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 16, 2006
Supreme Court, Sullivan County

In the Matter of the Application of Hector Batista, 93-A-0867, Petitioner,

against

James J. Walsh, Sullivan Correctional Facility, Respondent.



1757-06



APPEARANCES:

Hector Batista, 93-A-0862

Sullivan Correctional Facility

P.O. Box 116

Fallsburg, NY 12733

Petitioner, Pro Se

Hon. Eliot Spitzer

Attorney General of the State of New York

235 Main St.

Poughkeepsie, NY 12601

By: Mary B. Kavaney, AAG, of counsel

Attorney for the Respondent

Frank J. LaBuda, J.

Petitioner filed for a writ of habeas corpus. He alleges that the time computation of his criminal sentence is incorrect, he has fully served his criminal sentence, and he should be discharged from prison.

Respondent submitted an answer, refuting Petitioner's claim.

Petitioner submits reply.

This court denies petitioner's application for a writ.

Petitioner has a prior, relevant criminal background. [*2]

He was sentenced to a term of one to three years for a felony on November 26, 1984. He received parole on March 5, 1986. He was declared delinquent on November, 24, 1986.

He was then convicted as a second felony offender and sentenced to two terms of two-and-one-half to five years, concurrent to each other, on January 22, 1987. He received parole on March 15, 1990. He was declared delinquent on May 7, 1990.

He was then convicted of four felonies and sentenced to four terms of twelve-and-one-half to twenty-five years, to run currently to each other, on January 7, 1993.

Petitioner claims his 1993 sentence should run concurrently, not consecutively, to his previous sentences.

Respondent answers that Petitioner's 1993 sentence should run consecutively to his 1984 and 1987 sentences.

This Court finds that petitioner's 1993 sentence should run consecutively to his undischarged 1987 sentence but not to his 1984 sentence which should have been discharged prior to the 1993 sentence date.

Penal Law §70.25(2-a) states, "when an indeterminate sentence of imprisonment is imposed... and such person is subject to an undischarged indeterminate sentence of imprisonment prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence (italics added)."

Without delving into specific dates, Petitioner served two years and 38 days (with jail credit) of his 1984 sentence before violating his parole and being declared delinquent. This left about ten months and twenty days on his sentence after delinquency before full discharge.

Petitioner then served approximately three years and three months (with jail credit) after his 1987 sentence until paroled and declared delinquent on May 7, 1990. By operation of law, PL 70.25(2-a), petitioner's 1987 sentence must run consecutively to the undischarged portion of his prior 1984 sentence. Thus, the first approximately ten months, twenty days of the three years and three months prison time petitioner served after his 1987 sentence and prior to his parole in 1990 satisfied the remaining time of his 1984 sentence first, and then his 1987 sentence of [*3]two and one-half to five commenced. Therefore, when petitioner was paroled on his 1987 sentence in 1990 his prior 1984 sentence was discharged.

Petitioner had not satisfied his 1987 sentence at the time his 1993 sentence was imposed on January 7, 1993. By operation of law, PL 70.25(2-a), petitioner's 1993 sentence must run consecutive to the undischarged remainder of his 1987 sentence, but not to his prior 1984 sentence since it was discharged prior to his parole in 1990.

Petitioner claims that Penal Law §70.25(1-a) should control because the court that sentenced him in 1993 did not specify the manner in which his sentence was to run. This theory is misguided and does not apply to this case.

Respondent correctly calculates that Petitioner's earliest conditional release date is December 24, 2008, and present maximum term expiration date is February 8, 2018.

Based upon the above, it is

ORDERED, that petitioner's writ of habeas corpus is denied.

This shall constitute the Decision and Order of this Court.

DATED: August 16, 2006

Monticello, NY

___________________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate