Matter of O'Reilly v Alexander

[*1] Matter of O'Reilly v Alexander 2007 NY Slip Op 52544(U) [19 Misc 3d 1106(A)] Decided on December 27, 2007 Supreme Court, Franklin County Feldstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 27, 2007
Supreme Court, Franklin County

In the Matter of the Application of Michael O'Reilly, Petitioner,

against

George Alexander, Chairman, New York State Board of Parole and Lawrence Sears, Superintendent, Franklin Correctional Facility, Respondents.



2007-0701

S. Peter Feldstein, J.

This is a habeas corpus proceeding that was originated by the Petition for a Writ of Habeas Corpus of Michael O'Reilly, verified on May 18, 2007, and stamped as filed in the Franklin County Clerk's Office on May 22, 2007. Petitioner, who is an inmate at the Franklin Correctional Facility, is challenging his continued incarceration in the custody of the New York State Department of Correctional Services. The Court issued an Order to Show Cause on July 3, 2007, and an Amended Order to Show Cause on July 24, 2007. On July 30, 2007, Prisoners' Legal Services of New York (PLS) filed a Notice of Appearance on behalf of the petitioner in the Franklin County Clerk's office. No amended petition, however, was filed. The Court has since received and reviewed the respondents' Return, dated August 17, 2007, as well as the Reply Affirmation of Michael E. Cassidy, Esq., Managing Attorney of the Plattsburgh Office of PLS, filed in the Franklin County Clerk's office on September 4, 2007.

On April 10, 1996, the petitioner was sentenced in Supreme Court, Dutchess County, to an indeterminate sentence of 4 to 12 years upon his conviction of the crime of Burglary 2°. On December 8, 2005, while at liberty under parole supervision, the petitioner was arrested for Driving While Intoxicated and Aggravated Unlicensed Operation of a Motor Vehicle 1°. The petitioner was apparently not held in local custody at that time. On March 31, 2006, however, the petitioner was arrested in connection with unrelated criminal charges and held in local custody in connection with those new charges as well as in connection with the aforementioned December 8, 2005, criminal charges. A parole violation warrant was lodged against the petitioner at the Dutchess County Jail on April 3, 2006.

Following a final parole revocation hearing held at the Dutchess County Jail on May 18, 2006, the petitioner's parole was revoked with a modified delinquency date of January 18, 2006, and a 12-month delinquent time assessment was imposed. On July 18, 2006, the petitioner was sentenced in County Court, Dutchess County to two, concurrent definite terms of one year each upon his convictions of the crimes of Aggravated Unlicensed [*2]Operation 1° and Driving While Intoxicated. Those concurrent sentences were directed to run "concurrently with parole." The petitioner was received back into DOCS custody as a parole violator on July 27, 2006, initially credited with 115 days of parole jail time (Penal Law §70.40(3)(c)) for the period from April 3, 2006, to July 26, 2006.

In December of 2006 the petitioner commenced an Article 78 proceeding in Supreme Court, Dutchess County, with Robert Dennison, New York State Division of Parole, as the only named respondent. The second cause of action asserted by the petitioner in the Dutchess County Article 78 proceeding is the only cause of action asserted therein which is directly relevant to the disposition of this proceeding. In that second cause of action the petitioner asserted that he was entitled to an additional four days of parole jail time credit for the period from March 31, 2006, to April 3, 2006. Without citing any statutory or judicial authority, the petitioner also asserted in his second cause of action that he was entitled to credit for those additional four days since his Dutchess County sentence was directed to run "concurrently with parole." On or about January 30, 2007, prior to the submission of the respondents' answering papers in the Dutchess County Article 78 proceeding, the petitioner submitted to the Supreme Court, Dutchess County, a document entitled "PETITION SUPPLEMENTAL RESPONSE," wherein he reported to the court that the Division of Parole had rescinded the previously-granted 115 days of parole jail time credit. In his supplemental papers the petitioner also appeared to suggest that his claim of entitlement to a 119-day credit (4 days plus 115 days) against his 1996 Dutchess County sentence (for the period from March 31, 2006, to July 26, 2006) was based upon the fact that the definite sentences were directed to run "concurrently with parole," rather than upon an application of the parole jail time credit statute (Penal Law §70.40(3)(c)).

The respondents' answering papers in the Dutchess County Article 78 proceeding included the affirmation of Elliott A. McIntosh, Esq., Assistant Counsel, New York State Division of Parole, dated February 20, 2007. In that affirmation Attorney McIntosh set forth in detail the reasons why, in his opinion, the petitioner was not entitled to any parole jail time credit for the entire period he spent in local custody at the Dutchess County Jail from March 31, 2006, through July 26, 2006. Attorney McIntosh also acknowledged petitioner's apparent claim of entitlement to some kind of credit against his 1996 Dutchess County sentence based upon the fact that the 2006 definite sentences were directed to run "concurrently with parole." Nevertheless, attorney McIntosh confined his analysis to a discussion of the parole jail time credit statute (Penal Law §70.40(3)(c)). In this regard attorney McIntosh argued that the non-applicability of the statute in question was not based upon any statutory distinction between subsequently imposed sentences directed to run concurrently as opposed to those directed to run consecutively. He went on to assert that the petitioner simply did not qualify for parole jail time credit under any of the provisions of Penal Law §70.40(3)(c).

By Decision, Order and Judgment dated March 15, 2007, the Supreme Court, Dutchess County, (Hon. James D. Pagones), dismissed the petition. The Decision, Order and Judgment notes that petitioner's aforementioned "PETITION SUPPLEMENTAL RESPONSE" dated January 30, 2007, was considered. The Decision, Order and Judgment, however, ultimately concluded that "[t]he affirmation of Elliot A. McIntosh, Esq., assistant counsel employed by the respondent New York State Division of Parole, provides a concise and rational rebuttal to petitioner's claim for parole jail time credit . . ." Nothing in the [*3]record suggests that the petitioner took an appeal from the March 15, 2007, Decision, Order and Judgment of the Supreme Court, Dutchess County. This proceeding ensued.

The petitioner purports to assert five separate causes of action in his petition for a writ of habeas corpus. His first two causes of action ultimately hinge upon the assertion that he is entitled to parole jail time credit for the 119-day period from March 31, 2006, to July 27, 2006. In his next two causes of action the petitioner appears to advance, at least in a vague manner, the proposition that he is entitled to some form of credit against his 1996 sentence, totally independent of his claim with his respect to parole jail time credit, for the time he spent in local custody from March 31, 2006, to July 27, 2006, based upon the fact that the definite sentences imposed on July 18, 2006, were directed to run "concurrently with parole." In petitioner's fourth cause of action, for instance, he cites, inter alia, Midgely v. Smith, 63 AD2d 223, in support of his position that a court imposing a definite sentence, as opposed to the Division of Parole, is authorized pursuant to Penal Law §70.25(1) to direct such sentence to run concurrently with or consecutive to time still owed by the defendant on the undischarged portion of a previously imposed state sentence. In his third cause of action, moreover, the petitioner cites Item 9423.00 of the New York State Division of Parole Policy and Procedures Manual, which he claims is based in relevant part on Penal Law §70.25(1)(b). According to the manual, "[p]arole staff will credit Parole jail time based on the following general criteria . . . the violator received a new definite term running concurrently with an undischarged portion of the present state sentence, the violator shall receive parole jail time credit starting from the date of the arrest or the date of the lodging of the parole warrant, whichever occurs first . . ." New York State Division of Parole Policy and Procedures Manual Item 9423.00(I)(C)(1)(c). In his fifth (and final) cause of action the petitioner merely asserts that any changes to an alleged January 2, 2007, award of good time or January 28, 2007, parole release plan approval, occurring ". . . after the date for which he [petitioner] should have been released 3-9-2007 should have no affect [sic] on petitioners immediate release, should this court decide that he should have been released prior to any such changes."

The respondents initially assert that habeas corpus relief is unavailable since petitioner would not be entitled to immediate release from DOCS custody even if he should prevail with respect to the credit at issue in this proceeding. In this regard the respondents note that the petition, verified on May 18, 2007, makes no mention of the fact that on May 12, 2007, the Commissioner's designee affirmed a April 30, 2007, recommendation of the Time Allowance Committee at the Franklin Correctional Facility to withhold all of petitioner's five months and 22 days of potentially available good time due to his ". . . unsuccessful completion of ASAT." DOCS calculated the maximum expiration date of petitioner's sentence to be January 4, 2008. Even with the 119 days at issue in this proceeding subtracted therefrom, the petitioner's maximum expiration date would fall (approximately) in mid-September, 2007. In view of the above, it is conceded in petitioner's Reply that he was not entitled to immediate release from DOCS custody at the time he initiated this proceeding on May 22, 2007. The Court therefore concludes that the petitioner is not entitled to habeas corpus relief. In reaching this conclusion the Court notes that it is not persuaded by petitioner's unsupported contention that the immediacy of his entitlement to release from DOCS custody should be measured as of the date the Court issues a final decision rather than the date the habeas corpus proceeding was [*4]commenced. Having determined that habeas corpus relief is unavailable, the Court must next determine whether or not the conversion of this habeas corpus proceeding into a proceeding for judgment pursuant to Article 78 of the CPLR is warranted.

To the extent petitioner contends that he is entitled to parole jail time credit against his 1996 Dutchess County sentence for time spent in local custody from March 31, 2006, to July 27, 2006, the Court finds such argument to be barred by collateral estoppel. Judge Pagones clearly considered this contention in the context of petitioner's Dutchess County Article 78 proceeding but nonetheless dismissed petitioner's claim for parole jail time credit. It is not at all clear, however, that Judge Pagones considered or ruled on petitioner's related claim for credit against his 1996 Dutchess County sentence for the 119-day time period in question based solely on the fact that the July 18, 2006, definite sentences were directed to run "concurrently with parole." This Court will, therefore, convert this habeas corpus proceeding into a proceeding for judgment pursuant to Article 78 of the CPLR solely for the purpose of considering petitioner's non-parole jail time credit claim.

The County Court Judge who imposed the two definite sentences on July 18, 2006, was clearly authorized by statute to direct such sentences to run concurrently with respect to the undischarged term of petitioner's April 10, 1996, Dutchess County sentence. See Penal Law §70.25(1)and Midgley v. Smith, 63 AD2d 223. Although somewhat in the dark with regard to the precise intent of the sentencing court when it directed that its definite sentences were to run "concurrently with parole," this court presumes, as apparently do all parties to this litigation, that the sentencing court's above-quoted concurrency language should be construed as synonymous with a directive that such definite sentences run concurrently with respect to the undischarged term of petitioner's 1996 Dutchess County sentence. The actual calculations of petitioner's various sentences, however, including the commencements dates and the amounts of jail time, if any, to be credited against such sentences, is governed by Penal Law §70.30 and other relevant statutes, rather than the sentencing court. See People v. Johnson, 292 AD2d 803, lv den 98 NY2d 711. While is simple to conclude that the definite sentences imposed on July 18, 1996, must be calculated as running concurrently with respect to unexpired term of petitioner's April 10, 1996, indeterminate sentence, an analysis of the practical effect of that conclusion presents several problems. Before undertaking such analysis the commencement and running dates of petitioner's various sentences, as established by statute, must be considered.

Petitioner's 1996 indeterminate sentence of imprisonment commenced running on April 30, 1996, when he was initially received into DOCS custody. See Penal Law §70.30(1). The running of that indeterminate sentence, however, was interrupted as of the modified delinquency date of January 18, 2006, and such interruption continued until the petitioner was returned to DOCS custody on July 27, 2006. See Penal Law §70.40(a). The petitioner's definite sentences, on the other hand, commenced running when he was received in the institution named in the sentence and commitment order (the Dutchess County Jail) presumably on July 18, 2006, the same day the definite sentences were imposed. See Penal Law §70.30(2).

Penal Law §70.30 addresses, inter alia, the methodologies utilized in the calculation of multiple, concurrent sentence of imprisonment in a variety of different contexts. The calculation of multiple, concurrent indeterminate or determinate sentences is considered in Penal Law §70.30(1)(a). The calculation of multiple, concurrent definite sentences [*5]served in a single institution is considered in Penal Law §70.30(2)(a). The calculation of multiple, concurrent, definite sentences, to be served in more than one institution, is considered in Penal Law §70.30(2)(c). The calculation of any sentence imposed by a court of this state, to run concurrently with an undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction is considered in Penal Law §70.30(2-a).[FN1] The provisions of Penal Law §70.30, however, are silent with respect to the calculation of a definite sentence(s) directed to run concurrently with respect to the undischarged term of a prior, indeterminate (or, for that matter, determinate) sentence

The petitioner relies heavily upon the 1978 decision of the Appellate Division, Fourth Department, in Midgley v. Smith, 63 AD2d 223. Mr. Midgley, who was serving several indeterminate sentences of imprisonment in DOCS custody, absconded while on furlough from a state correctional facility. The running of his indeterminate sentences of imprisonment was interrupted by that act with such interruption to continue until his return to a DOCS facility. See Penal Law §70.30(7). On March 25, 1977, Mr. Midgley was arrested for petit larceny and after pleading guilty to that charge was sentenced on April 4, 1977, to a definite one-year term of imprisonment to run concurrently with his prior sentences. He served the one-year term in local custody at Rikers Island and was not returned to a DOCS facility until December 2, 1977. Mr. Midgley then commenced an Article 78 proceeding to compel DOCS officials to credit the maximum term of his previously-imposed indeterminate sentence with the 252 days spent in local custody at Rikers Island from March 25, 1977, to December 2, 1977. Mr. Midgley prevailed at the Supreme Court level. In affirming the Supreme Court determination, the Fourth Department, citing Penal Law §70.25(1), rejected the argument that the petit larceny court had no authority to direct its definite sentence to run concurrently with Mr. Midgley's interrupted indeterminate sentences. Id at 226.

Implicit in Midgley is the recognition of a conundrum associated with the interaction between Penal Law sections 70.20(2), 70.25(1) and 70.40(3)(a). The statutory authority of a court imposing a definite sentence of imprisonment to direct that such sentence run concurrently with respect to the unexpired term of a prior indeterminate sentence (Penal Law §70.25(1)) is effectively rendered illusory where the definite sentence must be served in a local facility (Penal Law §70.20(2)) and the running of the prior indeterminate sentence of imprisonment is interrupted until the prisoner is returned to a DOCS facility (Penal Law §70.40(3)(a)). The Midgley court resolved this conundrum by affirming the underlying Supreme Court decision to credit the maximum term of Mr. Midgley's previously-imposed indeterminate sentences with the entire 252 days he spent in local [*6]custody at Rikers Island from March 25, 1977, to December 2, 1977. Nothing in Midgley, however, suggests that either the Supreme Court of the Appellate Division was called upon to consider the distinction between the ten days Mr. Midgley spent in local custody prior to the imposition of this definite sentence on April 4, 1977, and the remaining 242 days he spent in local custody after the definite sentence was imposed and, presumably, commenced running.

Returning to the case at bar, the court notes that the petitioner, in asserting an entitlement to some form of credit against the maximum term of his 1996 Dutchess County sentence for time spent in local custody from March 31, 2006, to July 27, 2006, based upon the fact that the definite sentences of July 18, 2006, were directed to run concurrently with respect to the unexpired term of the 1996 sentence, seeks to compel results that are at odds with relevant statutory provisions in at least two significant respects. First of all he argues, in effect, for the re-commencement of the running of his 1996 sentence, which had been interrupted as of the modified delinquency date of January 18, 2006, on March 31, 2006 - almost four months prior to his return to DOCS custody on July 27, 2006 - in direct contravention of the provisions of Penal Law §70.40(a). This, however, represents the conundrum resolved by the Midgley court in favor of the statutory power of a court imposing a definite sentence to direct such sentence to run concurrently with respect to the unexpired term of a previously imposed indeterminate sentence. This court finds no reason to deviate therefrom. Second, however, the petitioner argues, in effect, for the calculation of his 1996 indeterminate sentence as running between March 31, 2006 (the date of his arrest), and July 18, 2006 ( the date the definite sentences were imposed), concurrently with the July 18, 2006, definite sentences but before those definite sentences were imposed and commenced running. (Penal Law §70.30(2)). As alluded to previously, it does not appear that this issue was specifically confronted and resolved in Midgley. This Court, therefore, does not consider itself bound by the fact that the petitioner in Midgley did, in fact, receive a credit against the maximum term of his prior indeterminate sentences for the brief period he spent incarcerated in local custody prior to the imposition of his definite sentence.

This Court ultimately concludes that the petitioner must be afforded a credit against the maximum term of his 1996 indeterminate sentence for the time he spent in local custody after his definite sentences commenced running (July 18, 2006, through July 26, 2006). See Midgley v. Smith, 63 AD2d 223. This Court is not persuaded, however, that such credit may be extended to include any period of time the petitioner spent in local custody prior to the imposition and commencement of his definite sentences on July 18, 2006. Although jail time credit (Penal Law §70.30(3)) against petitioner's definite sentences is no doubt available with respect petitioner's pre-July 18, 2006, time spent in local custody, such credit is not available against the indeterminate sentence that commenced running on April 30, 1996. See Thomas v. Moody, 85 Misc 2d 666. As far as is relevant to this proceeding, the Court notes that jail time credit pursuant to Penal Law §70.30(3) is available only with respect to ". . . the amount of time the person [DOCS inmate] spent in [local] custody prior to the commencement of such [indeterminate] sentence . . ." (emphasis added). Consideration of any claim to parole jail time credit (Penal Law §70.40(3)(c)) for the time period in question is, of course, foreclosed in this proceeding having already been addressed by Judge Pagones in petitioner's Dutchess [*7]County Article 78 proceeding.

Based upon all of the above, it is, therefore, the decision of the Court and it is hereby

ADJUDGED, that the petition is granted, without costs or disbursements, but only to the extent that the respondents are directed to grant the petitioner a credit against the maximum term of his April 10, 1996, Dutchess County sentence for the time petitioner spent in local custody after the petitioner's July 18, 2006, definite sentences commenced running.

DATED:December 27 , 2007, at

Indian Lake, New York______________________

S. Peter Feldstein

Acting Supreme Court Judge Footnotes

Footnote 1:It is also noted that pursuant to the provisions of Penal Law §70.35, "[t]he service of an indeterminate or determinate sentence of imprisonment shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate or determinate sentence was imposed . . . A person was serving a definite sentence at the time an indeterminate or determinate sentence is imposed shall be delivered to the custody of the state department of correctional services to commence service of the indeterminate or determinate sentence immediately . . ." In the case at bar, obviously, the offenses underlying the imposition of the definite sentences were committed after the 1996 indeterminate sentence was imposed.