Matter of Cannon v Goord

[*1] Matter of Cannon v Goord 2005 NY Slip Op 51951(U) [10 Misc 3d 1054(A)] Decided on November 28, 2005 Supreme Court, Clinton 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 28, 2005
Supreme Court, Clinton County

In the Matter of Phillip Cannon, Petitioner,

against

Glenn S. Goord, Respondent.



05-779

S. Peter Feldstein, J.

This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the petition of Phillip Cannon, verified on July 13, 2005, and stamped as filed in the Clinton County Clerk's office on July 22, 2005. Petitioner, who is now an inmate at the Clinton Correctional Facility, is challenging the time computation associated with his current incarceration. The Court issued an Order to Show Cause on August 9, 2005. As part of that Order to Show Cause the Court granted petitioner's application for poor person status and permitted him to pay a reduced filing fee of $35.00 in accordance with the provisions of CPLR §1101(f). The Court has since received and reviewed respondent's Answer and Return, verified on September 23, 2005, as well as respondent's Letter Memorandum of September 23, 2005. The Court also received and reviewed petitioner's Reply thereto, filed in the Clinton County Clerk's office on October 14, 2005. In the meantime, by papers dated September 26, 2005, filed in the Clinton County Clerk's office on September 29, 2005, the petitioner sought reargument with respect to that portion of the Order to Show Cause which directed him to pay a reduced filing fee of $35.00 dollars. By letter dated October 18, 2005, the petitioner was advised that his motion for reargument would be considered in conjunction with the Court's consideration of the merits of this proceeding.

On August 8, 1989, the petitioner was sentenced in Supreme Court, Queens County, to an indeterminate sentence of imprisonment of 1 1/3 to 4 years. On December 18, 1990, he was released from DOCS custody to parole supervision with the maximum expiration date of 1989 sentence calculated as August 6, 1993. On July 27, 1993, however, the petitioner was sentenced in Supreme Court, Queens County, to a controlling, indeterminate sentence of imprisonment of 25 years to life upon his convictions of the crimes of Murder 2ø, Murder 2ø, Robbery 1ø and Criminal Possession of a Weapon 4ø. The sentencing Court was silent with respect to the issue of whether the 1993 sentence would run concurrent with or consecutive to the undischarged term of petitioner's 1989 sentence. The petitioner was received in DOCS custody on August 16, 1993. At that time DOCS officials concluded that petitioner had completed service of his 1989 sentence [*2]on August 6, 1993, and, accordingly, calculated petitioner's parole eligibility date, without reference to the 1989 sentence, as May 19, 2017.

Citing Penal Law §70.25(1)(a) and People v. Richardson, 100 NY2d 847, the petitioner contends that his 1993 sentence must be calculated as running concurrent with his 1989 sentence and, accordingly, that he is entitled to "prior jail time credit" against his 1993 sentence for time served in connection with his 1989 sentence. During the summer of 1993, when petitioner's latter sentence was imposed and he was subsequently received into DOCS custody, Penal Law §70.30(1)(a) read as follows: "1. Indeterminate sentences. An indeterminate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the State Department of correctional services. Where a person is under more than one indeterminate sentence, the sentences shall be calculated as follows:(a) If the sentences run concurrently, the time served under imprisonment on any of the sentences shall be credited against the minimum periods of all the concurrent sentences, and the maximum terms merge in and are satisfied by discharge of the term which has the longest unexpired time to run;"

Thus, even if the petitioner ultimately prevails and his 1993 sentence is calculated as running concurrent with the undischarged term of his 1989 sentence, no "credit" would be applicable against the maximum term of the 1993 sentence. The time served by the petitioner under imprisonment on his 1989 sentence, however, would be credited against the minimum period of the 1993 sentence, thereby hastening the time when petitioner would be eligible for release to parole supervision from his 1993 sentence.

There is no real issue before the Court as to whether petitioner's 1993 sentence should be calculated as running concurrent with or consecutive to his 1989 sentence. The provisions of Penal Law §70.25(1)(a) unquestionably mandate concurrent treatment and there is nothing in the record to suggest that the respondent purports to calculate the two sentences as running in consecutive fashion. Rather, it is the respondent's position that petitioner's 1993 sentence should be calculated without reference to his 1989 sentence since the prior sentence allegedly expired on August 6, 1993 - 10 days before petitioner was received into DOCS custody commencing the running of his 1993 sentence. See Penal Law §70.30(1). After considering the previously-quoted statutory language of Penal Law §70.30(1), counsel for the respondent wryly notes that "[t]his proceeding turns not on Richardson but, in the words of a former President, on what the meaning of the word 'is' is in the second sentence of Penal Law §70.30(1)." After asserting that the statutorily undefined word "is" must be given its ordinary meaning, and after pointing out that Penal Law §5.00 directs that penal statutes ". . . must be construed according to the fair import of their terms to promote justice and effect the objects of the law," the respondent urges the Court to find that DOCS officials correctly determined that at the time petitioner's 1993 sentence commenced on August 16, 1993, he was not ". . . a person [who] is under more than one indeterminate sentence [emphasis added]," within the meaning of Penal Law §70.30(1). For the reasons set forth below, however, the Court is unable to reach such a conclusion.

The analysis advanced by the respondent fails to take into consideration the operation of Executive Law §259-i(3)(d)(iii). Pursuant to that provision petitioner's July 27, 1993, conviction and sentencing revoked his parole by operation of law (see Tineo v. New York State Division of [*3]Parole, 14 AD3d 949) and required the issuance of a final declaration of delinquency. The proper final delinquency date, moreover, would have been the date of petitioner's arrest on the charges culminating in his 1993 sentence. See Cruz v. New York State Department of Correctional Services, 288 AD2d 572, app dis 97 NY2d 725 and Jarrell v. Rodriguez, 167 AD2d 776, app den 77 NY2d 806. In addition, ". . . the declaration of delinquency shall interrupt the person's sentence as of the date of the delinquency and such interruption shall continue until the return of the person to an institution under the jurisdiction of the state department of correctional services." Penal Law §70.40(3)(a). Since the running of petitioner's 1989 sentence should have been interrupted as of the date of his parole delinquency, such sentence would not have expired on August 6, 1993, and should still have been in effect when the petitioner was received back into DOCS custody on August 17, 1993. Thus the Court need not confront the thorny issue of what the meaning of the word "is" is. Were it nonetheless inclined to do, the Court would find that the word "is" in the second sentence of Penal Law §70.30(1), as used in the phrase "[w]here a person is under more than one indeterminate sentence," refers to the time that a latter sentence is imposed by a sentencing court rather than the time when the latter sentence commences running. Otherwise, the sentencing judge's authority to exercise his or her statutory discretion by imposing a sentence to run concurrent with a prior, undischarged term, might ultimately be subject to the vagaries of how quickly the defendant is transferred to DOCS custody after sentencing.

Having concluded that petitioner's 1989 sentence was still in effect at the time he was received back into DOCS custody on August 17, 1993, and that he is otherwise entitled to have his 1993 sentence calculated as running concurrently with the unexpired term of his 1989 sentence, the Court will next consider petitioner's motion to reconsider its August 9, 2005, order imposing a reduced filing fee of $35.00. It is the petitioner's position that CPLR §1101(f), to the extent it authorizes/requires the imposition of reduced filing fees on inmate litigants, is not applicable to this proceeding pursuant to CPLR §1101(f)(5), which provides, in relevant part, that "[t]he provisions of this subdivision [CPLR §1101(f)] shall not apply to a proceeding . . . which alleges a failure to correctly award or certify jail time credit due an inmate, in violation of section six hundred-a of the correction law and section 70.30 of the penal law." In this proceeding the petitioner sought a judgment of the Court requiring that his 1993 sentence be calculated as running concurrent with his 1989 sentence so as to have the time he served under imprisonment in connection with his 1989 sentence credited against the minimum period of his 1993 sentence. Penal Law §70.30(1)(a). Notwithstanding petitioner's characterization of the relief sought as "credit for . . . prior jail time," the Court finds that "jail time credit," within the meaning of CPLR §1101(f)(5), refers to the statutory credit for the amount of time an incarcerated individual spent in local custody prior to the commencement of his or her state sentence ( Penal Law §70.30(3)), as certified to DOCS by a local sheriff pursuant to Correction Law §600-a. Accordingly, the Court finds no basis to reconsider its August 9, 2005, imposition of a $35.00 reduced filing fee in connection with this proceeding.

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

ORDERED, that petitioner's motion for reconsideration with respect to the August 9, 2005, order imposing a reduced filing fee pursuant to the provisions of CPLR §1101(f) is denied; and it is further [*4]

ORDERED AND ADJUDGED, that the petition herein is granted, without costs or disbursements, but only to the extent that the respondent is directed to promptly re-calculate the time computation associated with petitioner's current imprisonment in a manner not inconsistent with the provisions of this Decision and Judgment.

Dated: November 28, 2005

Indian Lake, New York ________________________

S. Peter Feldstein

Acting Supreme Court Justice