Matter of Bernacet v Ponte

Matter of Bernacet v Ponte 2019 NY Slip Op 07998 Decided on November 7, 2019 Appellate Division, First 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 on November 7, 2019
Richter, J.P., Webber, Gesmer, Oing, JJ.
10272 250781/16

[*1] In re Cesar Bernacet, Petitioner-Appellant,

v

Joseph Ponte, Commissioner of the New York City Department of Correction, Respondent-Respondent.

Janet E. Sabel, The Legal Aid Society, New York (William D. Gibney of counsel), for appellant.

Georgia M. Pestana, Acting Corporation Counsel, New York (Claude S. Platton of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about February 14, 2018, denying the petition to annul respondent's determination dated April 5, 2016, which credited 268 days of jail time to petitioner's 2003 sentence rather than to his subsequently imposed sentences, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Respondent properly credited the 268 days of jail time at issue to postrelease supervision running as part of petitioner's initial 2003 sentence, pursuant to Penal Law § 70.30(3). That provision barred respondent from crediting those 268 days to petitioner's November 2015 and February 2016 sentences, which were imposed subsequent to the June 2015 maximum expiration date of the 2003 sentence (see Matter of Lewis v Holford, 168 AD3d 1303 [3d Dept 2019]; Matter of Brown v Apple, 119 AD3d 1295 [3d Dept 2014]; Matter of Booker v Lafflin, 98 AD3d 1213 [3d Dept 2012]). The decisions in Matter of Sparago v New York State Bd. of Parole (71 NY2d 943 [1988]) and Matter of Jeffrey v Ward (44 NY2d 812 [1978]) do not compel a contrary result.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 7, 2019

CLERK