Matter of Washington v Dennison

[*1] Matter of Washington v Dennison 2006 NY Slip Op 52656(U) [21 Misc 3d 1122(A)] Decided on August 21, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2006
Supreme Court, Franklin County

In the Matter of the Application of Donell Washington, Petitioner,

against

Robert Dennison, Chairman, Division of Parole, Respondent.



2006-241

S. Peter Feldstein, J.

This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the petition of Donell Washington, verified on March 10, 2006, and stamped as filed in the Franklin County Clerk's office on March 14, 2006. Petitioner, who is an inmate at the Bare Hill Correctional Facility, purports to challenge the time computation associated with his current sentence of imprisonment. The Court issued an Order to Show Cause on April 20, 2006, and has received and reviewed respondent's Answer and Return, including in camera materials, verified on June 2, 2006, as well as respondent's Letter Memorandum of June 2, 2006. The Court has also received and reviewed petitioner's Reply thereto, as well as his letter to the Court, both dated June 19, 2006, and both filed in the Franklin County Clerk's office on June 21, 2006.

On September 14, 1992, the petitioner was sentenced in Oneida County Court to consecutive, indeterminate sentences of imprisonment of 2 to 6 years and 1 to 4 years upon his convictions of the crimes of Burglary 1° and Attempted Burglary 2°. The petitioner was released from DOCS custody to parole supervision and subsequently declared delinquent and returned to DOCS custody as a parole violator on three separate occasions. The details of petitioner's first two parole violations are not relevant to the disposition of this case except to fix a starting point for the discussion of petitioner's third parole violation. In this regard, there appears to be no dispute that when the petitioner was returned to DOCS custody on February 2, 2000, following his second parole violation, the adjusted maximum expiration date of his Oneida County sentence was August 18, 2002.

The petitioner was released from DOCS custody to parole supervision for a third time on November 6, 2000. He was subsequently charged with violating the conditions of his parole in 12 separate respects. At a final parole revocation hearing held on January 14, 2002, the petitioner pled guilty to one parole violation charge and the remaining 11 were withdrawn. The Administrative Law Judge revoked petitioner's parole, with a modified delinquency date of November 8, 2001, and directed that petitioner be held until the maximum expiration date of his sentence. The petitioner was apparently not returned to DOCS custody immediately following the final parole revocation hearing but, rather, [*2]remained in local custody pending the disposition of outstanding criminal charges. On August 28, 2002, the petitioner was sentenced in Rockland County Court, as a second felony offender, to an indeterminate sentence of imprisonment of 8 years to life upon his conviction of the crime of Criminal Possession of a Controlled Substance 2°. He was received back into DOCS custody on September 18, 2002, certified as entitled to 308 days of jail time credit.

The petitioner appears to take the position that the maximum expiration date of his Oneida County sentence was reached on August 18, 2002, and therefore he owed no time on the Oneida County sentence when he was sentenced in Rockland County on August 28, 2002. According to the petitioner, however, certain correspondence "put forth" by the Division of Parole (on or about July 20, 2005?) ". . . caused a [sic] erroneous time computation to be formulated by the New York State Department of Correctional Services." According to the petitioner, the respondent Division of Parole failed to rectify its error in response to petitioner's demand letter of December 26, 2005. Notwithstanding the foregoing, although it appears that the petitioner is challenging an alleged assertion by the respondent that there was addition time owed in connection with petitioner's Oneida County sentence, the Court remains in the dark with respect to the precise nature of the respondent's alleged correspondence inasmuch as the petitioner failed to include a copy of same with either his petition or reply.

The respondent interposes three threshold defenses. Noting that ". . . the sole allegation of error against the Division of Parole is that in late July 2005 it provided DOCS with an update of Petitioner's status," the respondent first asserts that this proceeding, which was commenced by the filing of the petition on March 14, 2006, must be dismissed as time-barred pursuant to the four-month statute of limitations set forth in CPLR §217(1). The respondent also argues that the petition fails to state a cause of action against the respondent since ". . . it is DOCS, not the Division of Parole, which is responsible for the computation of the time owed by inmates in its custody."

The Court's consideration of the two threshold defenses noted above is impeded by petitioner's failure to specify the nature of the respondent's action at issue in this proceeding. If, for example, the petitioner was challenging the respondent's failure to properly certify his entitlement to parole jail time credit (Penal Law §70.40(c)(3)) - and the Court cautions both parties that it finds nothing in the petition to suggest that the petitioner is, in fact, asserting such a challenge - the threshold defenses noted above would likely be found to be without merit. It is clearly the function of the state Board of Parole, rather than DOCS, to certify the proper amount of parole jail time credit (see Executive Law §259-c(12)) and the Court might well conclude that the board's statutory mandate to do so involves a continuing, nondiscretionary, ministerial obligation, subject to judicial review in a mandamus proceeding commenced within four months after the respondent refused petitioner's demand to perform its obligation. See Bottom v. Goord, 96 NY2d 870. The two threshold defenses noted above, however, might prove meritorious in the context of actions of a different nature undertaken by the respondent. In any event, the Court's uncertainty leads it to consideration of petitioner's remaining threshold defense.

Noting that the petitioner did not supply a copy of the alleged correspondence from the respondent to DOCS and that he did not provide ". . . any details as to its nature, its provision to DOCS or how it caused DOCS to determine Petitioner owed time on his 1992 [*3]sentences," the respondent argues that the petitioner has not supported his claim with factual allegations of an evidentiary nature or other competent proof. The Court agrees and therefore finds that the petition must be dismissed. See Berrian v. Carpenter, 19 AD3d 769.

Even if the Court were to somehow attempt to address the merits of this proceeding, it finds no obvious flaw in the DOCS sentence computation that might be attributable to any action on the part of the respondent. The petitioner's Oneida County sentence was interrupted as of the November 8, 2001, delinquency date, and that interruption continued until the petitioner was returned to DOCS custody on September 18, 2002. See Penal Law §70.40(3)(a). It does not appear, moreover, that the petitioner was entitled to any parole jail time credit against his interrupted Oneida County sentence for the time he spent in local custody from the November 8, 2001, delinquency date until the running of the Oneida County sentence resumed upon his return to DOCS custody on September 18, 2002. It appears that such period of local custody was the result of petitioner's arrest on new criminal charges which culminated in his Rockland County conviction and the imposition of the 8 years to life sentence. The Court also notes that the petitioner was certified as entitled to 308 days of jail time credit (Penal Law §70.30(3)) against his Rockland County sentence. Jail time credit and parole jail time credit can be viewed as mutually exclusive, with jail time credit being applied against the parolee's newly imposed sentence and parole jail time credit being applied against his or her prior, interrupted sentence. Periods of time credited against one sentence can not be credited against the other. See Jeffrey v. Ward, 44 NY2d 812 and People v. Hanna, 219 AD2d 792.

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

ADJUDGED, that the petition is dismissed.



Dated:August21, 2006 at

Indian Lake, New York.__________________________

S. Peter Feldstein

Acting Supreme Court Justice