Matter of Batista v de Simone
Annotate this CaseDecided on September 24, 2013
Supreme Court, Albany County
In the Matter of the Application of Shamir Batista, Petitioner,
against
Richard de Simone, Attorney in Charge, Office of Sentencing Review, New York State Department of Corrections and ANDREA EVANS, Chairwoman, New York State Division of Parole, Respondents.
1976-13
Petitioner:
Shamir Batista
Self Represented Petitioner
Marcy Correctional Facility
PO Box 3600
Marcy, NY 13403-3600
Respondents:
Eric T. Schneiderman, Esq.
Attorney General of the State of New York
The Capitol
Albany, NY 12224-0341
Keith A. Muse, Esq., Assistant Attorney General,
of Counsel
Richard Mott, J.
In this Article 78 proceeding, Petitioner challenges the computation of his sentence.
He claims that following a December 18, 2008 delinquency declaration, which interrupted his service of Post Release Supervision (PRS), he did not receive proper credit for time he had served in the Willard Program which was arbitrary, capricious and contrary to law. Respondents deny that Petitioner is entitled to such credit and contend they acted in accordance with law.
Background
On March 9, 2005 Petitioner was sentenced in New York County to a determinate term of imprisonment of 3 ½ years followed by a 5-year term of PRS. Thereafter, he was released from prison to PRS on November 14, 2007. Upon his release, 6 months and 2 days of Petitioner's sentence were held in abeyance, and his PRS commenced in accordance with Penal Law §70.45(5)(a).
On December 18, 2008, Petitioner was declared delinquent, thereby interrupting his PRS. Penal Law §70.45(5)(d)(i). On February 3, 2009, he pleaded guilty to violating PRS and, according to the Parole Revocation Decision Notice, he received a one year time assessment with an alternative sanction of a 90-day substance abuse treatment program (SATP) administered by DOCCS. Answer, Exhibit G, p. 3,4.
After completing SATP, Petitioner was again released to PRS. While on PRS he was convicted of another crime for which he was sentenced in 2012.
The Parties' Claims
Petitioner claims that Penal Law §70.45(5)(d) entitles him to be credited with the time he served at Willard following revocation of PRS against the 6 months, 2 days imprisonment previously held in abeyance.
Respondent argues that despite his being returned to DOCCS, Petitioner's prison term did not re-commence and his PRS term ran. Cf. Penal Law §70.45(5)(d)(iv). Rather, Respondent contends that when a PRS violator is restored to supervision after treatment, Penal Law §70.45(5)(d)(iii) governs and the time at Willard is credited to PRS, while the prison term is held in abeyance. Muse Affirmation, ¶19. Respondent argues that because Petitioner's PRS revocation was "an alternate disposition" and he successfully completed SATP, the one-year time assessment imposed upon his violation of PRS was properly vacated and replaced with "a revoke and restore to supervision at Willard," effective as of the date of the revocation hearing. Affirmation, ¶22.
Discussion
The resolution of the parties' claims is determined by Penal Law §70.45(5)(d), which states in relevant part: When a person is alleged to have violated a condition of [PRS] and [DOCCS] has declared such person to be delinquent:[*2](i) the declaration of delinquency shall interrupt the period of [PRS];(ii) such interruption shall continue until the person is restored to [PRS]; (iii) if the person is restored to [PRS] without being returned to [DOCCS], any time spent in custody from the date of delinquency until restoration to [PRS] shall first be credited to the maximum...term of the sentence... of imprisonment...(iv) if the person is ordered returned to [DOCCS] , the person shall be required to serve the time assessment before being re-released to [PRS]....The time assessment shall commence upon the issuance of a determination after a final hearing that the person has violated one or more conditions of supervision.... Any time spent in custody from the date of delinquency until return to [DOCCS] shall first be credited to the maximum...sentence... of imprisonment... The maximum...term of the sentence...of imprisonment shall run while the person is serving such time assessment in the custody of [DOCCS].
On February 3, 2009, Petitioner was found guilty of violating PRS. That Decision states, "Delinquent Time Assessment imposed 12 months (alternate 90 day SATP of NYS DOCS)." Thereafter, Petitioner was returned to DOCCS and was credited, pursuant to Penal Law §70.45(5)(d)(iv), with 27 days for "time spent in custody from the date of delinquency until return to [DOCCS]." Since Petitioner was returned to DOCCS, Penal Law §70.45(5)(d)(iii) does not apply. Instead, Penal Law §70.45(5)(d)(iv) is applicable to Petitioner because he was returned to DOCCS and entered the SATP Program at Willard. Petitioner completed such program and was released to PRS from DOCCS custody on May 26, 2009, 5 months, 5 days after his return to DOCCS. Penal Law §70.45(5)(d)(iv) is explicit that "[t]he maximum...term of the sentence... of imprisonment shall run while the person is serving such time assessment in the custody of [DOCCS [FN1]]."
Respondents assert that since Petitioner successfully completed SATP, the time he served at Willard should be credited to his PRS rather than to his sentence. However, they have failed to provide the revocation hearing transcript, electing to rely solely upon the February 3, 2009 Parole Revocation Decision which contains no directive that upon Petitioner's completion of SATP he be revoked and restored. Further, Penal Law §70.45(5)(d)(iv) requires that time served in every DOCCS facility, i.e. Willard, must be credited to the maximum sentence. In these circumstances, the plain language of Petitioner's Parole Revocation Decision and Penal Law §70.45(5)(d)(iv) mandate that Petitioner's sentence and not his PRS be credited with the time he served from the declaration of delinquency until his release to PRS from Willard.
Accordingly, because Respondents' refusal to credit the time Petitioner served at Willard to his sentence is arbitrary, capricious and contrary to law, the Court hereby annuls Respondents' computation of Petitioner's sentence and directs that Respondents recalculate Petitioner's sentence in accord with this Decision and Order. [*3]
This constitutes the Decision and Order of this Court. The Court is forwarding the original Decision and Order directly to Respondent, who is required to comply with the provisions of CPLR §2220 with regard to filing and entry thereof. A photocopy of the Decision and Order is being forwarded to all other parties who appeared in the action. All original motion papers are being delivered by the Court to the Supreme Court Clerk for transmission to the County Clerk.
Dated:Claverack, New York
September ______, 2013
ENTER
_____________________________________________________
RICHARD MOTT, J.S.C.
Papers Considered:
1.Order to Show Cause, dated April 26, 2013; Affidavit in Support of Order to Show Cause, dated March 24, 2013; Verified Petition, dated March 24, 2013, with Exhibits A-E;
2.Answer, dated August 8, 2013, with Exhibits A-I; Affirmation of Keith A. Muse, Esq., dated August 8, 2013;
3.Petitioner's Reply, dated August 26, 2013.
Footnotes
Footnote 1:Willard is a DOCCS facility. See, CPL §410.91.
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