Matter of Watts v Fischer
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Matter of Watts v Fischer 2012 NY Slip Op 32976(U) December 14, 2012 Sup Ct, Albany County Docket Number: 2038-12 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In The Matter of JAMES WATTS, Petitioner, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- BRIAN FISCHER @OCCS) and ANDREA EVANS @iv. Of Parole), Respondents, Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 01-12-ST3675 Index No. 2038-12 Appearances: James Watts Inmate No, 95-A-5937 Petitioner, Pro Se Wyoming Correctional FaciIity P.O. Box 501 3203 Dunbar Road Attic%NY 14011-0501 Eric T. Schneiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Brian J. O DonnelI, Assistant Attorney General of Counsel) DECISIONIORDEWJUDGMENT George B. Ceresia, Jr., Justice The petitioner, an inmate at Wyoming Correctional Facility, has commenced the instant CPLR ArticIe 78 proceeding to review a determination with regard to the cdcuIation [* 2] of his sentence. He was initially sentenced on October 23,.1990 i Supreme Court, Queens n County, to an indeterminate t a m of 4 314 years to 9 % years for robbery in the first degree (the I 990 sentence ). He was received by the New York State Department of Correctional Services, now known as the Department of Corrections and Community Service ( DOCCS ) on March 26,199 1. At that time he was credited with 400 days of jail time from the New York City Deparbnent of Correction. On August 29, 1994 h e petitioner absconded from a temporary release program. Subsequent to that he was the subject of a second criminal prosecution. He was sentenced on August 7, I995 i the Supreme Court, Kings County, as n a second violent felony offender to the following: three terms of 10 years to 20 years for three counts of robbery in the first degree, a term of 7 /2 years to 15 years for criminal possession of a weapon in the second degree, and a term of 3 % years to 7 years for criminal possession of a weapon in the third degree (the 1995 sentence ). The Court directed that the sentence for the second count of robbery i the first degree run consecutively with the n sentence of the first count of robbery in the fmt degree. Because the underlying crimes of the 1995 sentence were committed on September 29, 1994, they ran consecutively tu the 1990 sentence @ Penal Law 5 70.25 [Z-a]; People ex rel. Gill v Greene, 12 NY3d 1,4 [ZOOS]). By reason of an error in the calculation of his sentence in 1995, he was given a parole eligibility date of December 15,2009, and his initial parole interview was heldon November 3,2009, He was denied parole and held for 24 months. In January 2011DOCCS discovered 1 The petitioner does not dispute any credit far jail time in this proceeding. 2 [* 3] that petitioner s sentence was incorrectly calculated,and recalculated it. As a consequence, he did not reappear before the Parole Board in November 20 1 1. In accordance with the calculations made on January 28, 201 1, petitioner is scheduled for a parole interview i n August 2014. The petitioner seeks review of the January 28,20 11 re-calculation of his sentence. He maintains that his parole board appearance scheduled ¬or November 20 11 should not have been cancelled and he should not have to wait until August 2014 for a reappearance. He contends that Penal Law 6 70.30 has been misapplied, and that his 1995 sentence should have an aggregate term of 15 to 30 years not 20 to 40 yeas. The respondent acknowledges that errors were made i connection with the n calculation of petitioner s sentence. It is conceded that in a calculation dated August 25, 1995, DOCCS employed an incorrect maximum expiration date ofpetitioner s 1990 sentence (stated as November 20, 1999, when it should have been August 20, 1999). I addition, n DOCCS indicates that the total possible good time was incorrectly set forth as 26 years 6 months, when it should have been 16 years 6 months.2 DOCCS promptly discovered the errors, and recalculatedpetitioner s sentence on August 28,1995. This time, however, while correcting the previous errors, it incorporated yet another error into the calculation by misstatingthe aggregate minimumterm and aggregate maximum term of petitioner s 1995 sentence as 15 years to 30 years. At some point DOCCS discoveredthe error and on January 28, 2011 DOCCS recalculated petitioner s sentence wing an aggregate minimum of %o as not to exceed one-third of the 49 % year aggregate maximum term of both the 1990 sentence and the 1995 sentence @ Correction Law fi 803 121 [b]). 3 [* 4] petitioner s 1995 sentence of 20 years, and an aggregate maximum of petitioner s 1995 sentence of 40 years. As respondent points out, Penal Law Former 8 70.30 (1) (c),which was i effect i n n 1994 when the crimes UnderIying the 1995 sentence were committed, recites, in part, as folIows: (c) (i) Except as provided in subparagaph (ii) or (iii) of this paragraph, the aggregate maximum term of consecutive sentdnces imposed for two or more crimes, other than two or more crimes that include a class A felony, committed prior to the time the person was imprisoned under my such sentences shall, if it exceeds twenty years, be deemed io be twenty years, unless one of the sentences w s imposed for a class B felony, i a n which case the aggregate maximurn term shall, if it exceeds thirty years, be deemed to be thirty years. Where the aggregate maximum term of two or more consecutive sentences is reduced by calculation made pursuant to this paragraph, the aggregate minimum period of imprisonment, if it exceeds onehalf of the aggregate maximum term as so reduced, shall be deemed to be onehalf of the aggregate mayimll#1 term as so reduced. (ii) Notwithtanding subparagraph 0) o this paragruph, the f agpegute pnaximum term o consecutive semxaces imposedfor f the conviction o two viokntfeluny oflenses cmnmittedprior to f the time the person was imprisuned under any b such seniences f a d one o which i u class B viulenrfelony ofeme, shall, f i t f s exceedsford)lyews, Be deemed to beforv years. (see L 1983, c 199 0 1, emphasis sup~lied)~ In this instance, petitioner s 1995 sentence included convictions for the crime of robbery i n the fmt degree, which is a class B violent felony (see Penal Law Q 70.02 [l] [a]). Accordingly, Penal Law Former 5 70.30 (1) (c) (ii) govemedpetitioner s 1995 sentence since it included conviction for three violent felony offenses committed prior to the time he was The provision, as subseqtrdy amended, is now found i Penal Law 5 70.30 (1) n 4 (e). [* 5] imprisoned for such offenses, and which were class B violent felonies. Upon application of Penal Law Former 5 70.30(1) (c) (ii), the petitioner is not entitled to g. sentence reduction, since petitioner s aggregate sentence did not exceed 40 years @ People ex rel. Walker v Yelich, 71 AD3d 1348 [3dDept., 20101). Thus, on its face, while it appearsthat respondent erred i its computation dated August 28,1995 with respect to petitioner s 1995 sentence (by n hcorrectIy calculating it using a 15 year aggregate minimum and a 30 year aggregate maximum), the January 28,2011 computation of the 1995 sentence, using a 20 aggregate minimum and 40 year aggregatemaximum, is correct &Penal Law former 3 70.30 [ 11 [c] [ii]); People ex rel. Walker v Yelich, supra). Lastly, respondent correctly points out that the respondent has a continuing, nondiscretionary, ministerial duty to make accurate cdculations of terns of imprisonment, >. , a duty that requires it to correct known errors If (Matter of Goodson v New York State De@. t. of Correctional Servs., BO AD3d 1064 [3d Dept., 20 1 11, quoting Matter offatterson v Goord, 299 AD2d 769,770,750 W S 2 d 362 [ZOOZ]). Consequently, while it is unfortunatethat the respondent erred in the past with respect to the calculation of petitioner s sentence, this did not relieve the respondent fiom its responsibilityto correct its error. The petitioner s parole eligibility date was properIy fixed at December 15,2014. The Court has reviewed and considered petitioner s remaining arguments and contentions and finds them to be without merit. The Court fmds that the determination was not made i violation of lawful procedure, n is not affected by an error of law, and is not irrational, arbitrary and capricious, or an abuse of discretion. The Court concludes that the petition must be dismissed. 5 [* 6] Accordingly it is ORDERED and ADJUDGED, that the petition be and hereby is dismissed, This shall constitute the decision, order and judgment of the Court. The original decisiodorderljudgment is returnedto the attorney for the respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decisiodorderljudgmentdoes not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. ENTER December ,2012 Troy, New York Dated: Papers Considered: 1. 2. Order To Show Cause dated April 20,2012, Petition, Supporting Papers and Exhibits Answer dated July 16,2012, Supporting Papers and Exhibits 6
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