Matter of Perez v Hynes

[*1] Matter of Perez v Hynes 2009 NY Slip Op 50196(U) [22 Misc 3d 1120(A)] Decided on February 4, 2009 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 4, 2009
Supreme Court, Kings County

In the Matter of the Application of Mario Perez, Petitioner,

against

Charles Hynes, Martin F. Horn, New York City Department of Correction, et al. Respondents



5505/05

Francois A. Rivera, J.

By order to show cause Mario Perez (hereinafter petitioner) moves pursuant to CPLR 1101 to proceed as a poor person and pursuant to Article 78, to seek review of a determination of the New York City Department of Correctional Services (NYCDOCS) computing his jail time credit. By order of the Kings County Supreme Court, dated February 8, 2008, petitioner is permitted to prosecute the instant motion as a poor person.

MOTION PAPERS

Petitioner's papers include his affidavit to proceed as a poor person dated January 18, 2008, his verified petition and several annexed exhibits. The exhibits will be identified in the order they appear since they are not clearly marked. The first is petitioner's letter to the NYCDOCS dated November 22, 2005, seeking a jail time credit certificate. The second is petitioner's letter to NYCDOCS dated December 27, 2005 seeking a correction and recomputation of his jail time credit. The third is a certificate of disposition dated November 23, 2007. The certificate reflects petitioner arrest on December 14, 1984, his conviction by plea to attempted robbery in the second degree on June 27, 1986 and his sentencing to one year of imprisonment. The fourth is a sentence and order of commitment under indictment number 1173-86 dated March 23, 1987. The commitment order reflected that the petitioner was convicted of murder in the second degree and criminal possession of a weapon in the second degree. He was sentenced to a minimum of 25 years and a maximum of life imprisonment on the murder charge and a minimum of 5 years and a maximum of 15 years on the criminal possession of a weapon charge to run concurrent with each other. The fifth is petitioner's letter to NYCDOCS dated January 22, 2007 seeking information and assistance with the computation of his jail time credit. He contends therein that the respondent is improperly failing to credit one hundred and one days of incarceration from June 28, 1986 to October 7, 1986. The sixth is petitioner's letter dated April 5, 2007 to the Jail Time Coordinator for the NYCDOCS in which he reiterates his claim of error in computing his jail time credit. [*2]

By order of this court dated April 4, 2008, respondent NYCDOCS was granted an adjournment to respond to petitioners order to show cause and petition.

Respondent New York City Department of Correction interposed a verified answered dated April 28, 2008. The answer denied the allegations set forth in the petition and asserted certain allegations of fact. On May 20, 2008, this court dismissed the petition against respondent Charles Hynes. Both sides exchanged documents they wanted the court to consider on the motion and which would be offered at a fact finding hearing. On June 10, 2008, the court conducted a hearing to resolve the contested facts. Petitioner appeared at the hearing through the use of video conferencing technology.

Respondent NYCDOCS submitted additional papers dated July 16, 2008 and petitioner submitted additional papers dated August 21, 2008.

FINDINGS OF FACT

After conclusion of the hearing and review of all documents submitted, the court makes the following findings of fact. On December 14, 1984, the petitioner was arrested and indicted under Kings County indictment number 07632/1984 for Robbery in the Second Degree. After arraignment, the petitioner was in the custody of the NYCDOCS until his release on December 20, 1984.

On February 24, 1986, petitioner was rearrested and later indicted under Kings County indictment number 01173/1986 for Murder in the Second Degree and Criminal Possession of a Weapon in the second degree. Petitioner was remanded to NYCDOCS custody and was also being held under indictment number 07632/1984. On June 6, 1986, while still under remand to the NYCDOCS based on his re-arrest and detention under the murder indictment, petitioner plead guilty before Justice Feldman to attempted robbery in the second degree under indictment number 07632/84 and was sentenced on June 27, 1986 to one year of imprisonment on that conviction.

On June 28, 1986, the following day, petitioner was transferred to a section of Rikers island to commence his sentence. On October 8, 1986, the one year sentence was deemed satisfied and petitioner was transferred to another section of Riker's island in which he was being detained under indictment 01173/1986. On February 17, 1987, the petitioner was convicted of murder in the second degree and criminal possession of a weapon in the second degree. On March 23, 1987, he was sentenced to a minimum of 25 years and a maximum of life imprisonment on the murder charge and a minimum of 5 years and a maximum of 15 years on the criminal possession of a weapon charge to run concurrent with each other. On March 27, 1987, petitioner was discharged from NYCDOCS and transferred to the New York State Department of Correctional Services to commence his life sentence on the murder conviction.

On April 29, 1987, the NYCDOCS determined that petitioner was not entitled to jail credit against his present life sentence for the period of time he served from June 28, 1986 through October 7, 1986 under indictment number 7632/1984. NYCDOCS also determined that he was entitled to 295 days of jail time credit for the period from February 24, 1986 to June 27, 1986 and for the period of October 8, 1986 to March 26, 1987.

The issue under review is whether the determination by NYCDOCS not to give the petitioner jail time credit against his present life sentence for the period of time he served from [*3]June 28, 1986 through October 7, 1986 was proper.

APPLICABLE LAW"The term of a definite sentence, a determinate sentence, or the maximum term of an indeterminate sentence imposed upon a person is credited with and diminished by the amount of time the person spent in custody prior to the commencement of the sentence as a result of the charge that culminated in the sentence" [NY Penal Law 70.30(3)]. This statute is intended to remove the inequality existing between the indigent defendant and the defendant who has sufficient resources to post bail. It is a remedial statute that is to be applied retroactively (Burke v. New York State Bd. Of Parole, 103 Misc 2d 615 [Sup 1980]).

"The primary purpose of the statute is to give a person convicted of a crime, credit for the time he has spent in local custody awaiting disposition of the charge. It is also intended to give him credit for the time spent in a local facility after pronouncement of sentence, since an indeterminate sentence does not formally commence until the person is received at a State institution (Penal Law 70.30, subd.1) and a definite sentence does not formally commence until he is received at the institution named in the committment (Penal Law 70.30, subd.2). As a general rule then, a person who has been held in local custody, on a certain charge, prior to the formal commencement of his sentence on that charge, is entitled to credit the time previously spent in the local facility before and after sentence was pronounced. However, even though a person has been held in local custody on a certain charge, he is not entitled to have the time credited against the sentence imposed on that charge if it has already been credited to a "previously imposed sentence." (Kalamis v. Smith, 42 NY2d 191[1977]).

The credit must be calculated from the date custody under the charge commenced to the date the sentence commences and is not to include any time that is credited against the term or maximum term of any previously imposed sentence or period of post-release supervision to which the person is subject [NY Penal Law 70.30(3)]

In the instant case, during the time petitioner spent in Rikers Island in the EMTC unit from June 28, 1986 through October 7, 1986, he was serving a one year jail sentence imposed under indictment number 7632/1984 for his robbery conviction. The time he spent in jail awaiting disposition of the robbery charge was credited against the one year jail sentence. As of October 8, 1986, petitioner had completed the one year jail sentence on his robbery conviction and his detention continued in Rikers Island where he was held on the murder charge under 01173/1986 until March 27, 1986, when he was transferred to the New York State Department of Correction to begin serving his life sentence on the Murder conviction.

The time during June 28, 1986 through October 7, 1986, petitioner's detention in Rikers Island was on a sentence imposed for a conviction which was prior to the commencement of his present life sentence. On these facts, petitioner was not entitled to have this time credited on his murder sentence because he was not a detained person awaiting sentence on a charge. Rather he was serving a previously imposed sentence on the robbery and may not have this time used as credit toward his not yet imposed sentence on the murder conviction (Kalamis v. Smith, 42 NY2d 191[1977]).

NYCDOCS's determination not to credit this time toward his life sentence on the murder charge under 01173/1986 was correct. The petition is therefore denied and dismissed. [*4]

The foregoing constitutes to the decision and order of the court.

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J.S.C.