Matter of Lee v LaClair

[*1] Matter of Lee v LaClair 2017 NY Slip Op 51202(U) Decided on September 13, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2017
Supreme Court, Franklin County

In the Matter of the Application of Lamar Lee, Petitioner,

against

Darwin LaClair, Superintendent, Franklin Correctional Facility, Respondent.



2017-153
S. Peter Feldstein, J.

This proceeding was originated by the Petition for Writ of Habeas Corpus of Lamar Lee (hereinafter referred to as "Petitioner"), sworn on March 2, 2017 and filed in Franklin County Clerk's office on March 8, 2017. Petitioner, who is an inmate at the Franklin Correctional Facility, is challenging his continued incarceration in the custody of the New York State Department of Corrections and Community Supervision.

The Court issued an Order to Show Cause on March 15, 2017. By letter dated March 29, 2017, the petitioner requested an extension to serve. Accordingly, the Court issued an Amended Order to Show Cause on April 4, 2017. In response thereto, the Court received and reviewed the respondent's Answer and Return, verified on May 22, 2017, together with a Letter-Memorandum by Christopher J. Fleury, Esq., Assistant Attorney General. No Reply was received by the petitioner.

On July 16, 2008, the petitioner was sentenced to an indeterminate term of incarceration for a period of two and one-third (2 ) to seven (7) years upon the conviction of Criminal Possession of a Weapon in the Third Degree by the Onondaga County Court. Petitioner was also sentenced to a concurrent determinate sentence of one (1) year incarceration upon the conviction of Reckless Endangerment in the Second Degree. The petitioner received credit of 32 jail days for the periods of incarceration in the custody of the Onondaga County Sheriff's Department on December 9, 2007 and from June 28, 2008 to July 29, 2008 when he was received into the custody of the New York State Department of Correctional Services (hereinafter referred to as "DOCCS").[FN1] The petitioner's maximum expiration date was calculated to be June 26, 2015.

On July 1, 2009, the petitioner was sentenced by the Onondaga County Court to a determinate term of three and one-half (3½) years and one and one-half (1½) years of Post-Release Supervision upon conviction of Criminal Possession of a Weapon in the [*2]Second Degree. The 2009 sentence was directed to run concurrently with the 2008 sentence.

On February 26, 2013, the petitioner was released to post-release supervision. At that time, the petitioner owed two (2) years and four (4) months of time which was held in abeyance on the 2009 determinate term. Upon petitioner's release, the post-release supervision maximum expiration date was calculated to be August 26, 2014. On May 13, 2013, the petitioner's release was declared delinquent. On August 12, 2014, petitioner was sentenced by the Onondaga County Court to time served upon the conviction of Criminal Possession of a Controlled Substance in the Seventh Degree, a misdemeanor. The sentencing court did not specify if the sentence was to run concurrently. On September 3, 2014, the petitioner was again restored to post-release supervision and credited with twenty-one (21) days of parole jail time for the period of August 13, 2014 to September 2, 2014. At that time, the petitioner still owed 2 years 3 months and 9 days on the determinate sentence which was held in abeyance. The petitioner also owed 1 year 3 months and 13 days of delinquent time to post-release supervision thereby extending his adjusted post-release supervision maximum expiration date to be calculated as December 26, 2015.

On September 1, 2015, petitioner was declared delinquent and on October 29, 2015, a parole warrant was lodged. A final parole revocation hearing was held on December 8, 2015, at which time parole release was revoked and the petitioner was directed to serve until his maximum expiration. Petitioner was received by DOCCS again on December 21, 2015 at which time he was credited with 53 days of parole jail time for the period of October 29, 2015 to December 20, 2015. As of December 21, 2015, the petitioner owed 2 years 1 month and 16 days of net time which had been held in abeyance on the determinate term and the maximum expiration date was calculated to be February 7, 2018. It was also determined that the petitioner owed 3 months and 15 days for post-release supervision for time he was delinquent for which his post-release supervision maximum expiration date was calculated to be May 22, 2018.

Petitioner argues herein that DOCCS improperly calculated his maximum expiration date inasmuch as he was not properly credited with time he served during the period between arrest and the 2014 sentence. Petitioner argues that as the crime of the 2014 conviction was a misdemeanor, the maximum time he could be legally sentenced is one year, therefore with good time, the sentence would be no more than 8 months. The petitioner calculates that the additional 7 months that he was incarcerated prior to the 2014 sentence should be credited. Petitioner further argues that as the 2008 sentence and the 2009 sentences were concurrent, they should have merged into the greater sentence, i.e. maximum term of 7 years. Petitioner asserts that pursuant to Penal Law §70.40(3)(c), the time petitioner served in the local jail while detained upon the parole warrant must be credited against the aggregated maximum term which includes the 15 months that he was detained and sentenced as "time served" in 2014.

Respondent argues that the petitioner's interpretation of Penal Law §70.40(3)(c) is misplaced. Inasmuch as the petitioner received a "time served" sentence for the 2014 conviction, the actual time cannot count against two sentences particularly since the sentencing court was silent as to whether the sentence was to run concurrently and therefore by operation of law, the sentence was to run consecutively. See, PL [*3]§70.25(b)(1). Pursuant to Penal Law §70.40(3)(c)(iii), the petitioner received credit for the incarceration between May 30, 2013 to August 13, 2014 against his 2014 conviction.

Penal Law §70.40(3) reads in relevant part:

(c) Any time spent by a person in custody from the time of delinquency to the time service of the sentence resumes shall be credited against the term or maximum term of the interrupted sentence, provided:(i) that such custody was due to an arrest or surrender based upon the delinquency; or(ii) that such custody arose from an arrest on another charge which culminated in a dismissal or an acquittal; or(iii) that such custody arose from an arrest on another charge which culminated in a conviction, but in such case, if a sentence of imprisonment was imposed, the credit allowed shall be limited to the portion of the time spent in custody that exceeds the period, term or maximum term of imprisonment imposed for such conviction."

Inasmuch as the 2014 sentencing court imposed a sentence of "time served" as opposed to a one year definite sentence, it is presumed such sentence was negotiated and the jail time credit was considered therein. For example, if the 2014 Court had sentenced the petitioner to a six month definite sentence, the remaining period of time above the sentence would have been credited against the original aggregate sentence. Notwithstanding that the 15 month period of incarceration was more than what the petitioner could have been sentenced to for a misdemeanor conviction, the proper challenge of that sentence would be to that sentencing court. See Smith v. Annucci, 146 AD3d 1266.

Insofar as the petitioner has not established that the jail time credit was improperly calculated, respondent argues that the petitioner is not entitled to immediate release. "Habeas corpus relief is available only if an inmate can demonstrate that he or she is entitled to immediate release from prison. An inmate is not entitled to immediate release from prison until the expiration of his or her sentence (internal citations omitted)." People ex rel. Porter v. Napoli, 56 AD3d 830, 831. In the matter at bar, following the final parole revocation determination, which was not challenged herein, the petitioner was remanded to the custody of DOCCS to serve the remainder of the time owed to post-release supervision which is until May 22, 2018. As such, the petitioner is not entitled to immediate release.

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

ORDERED AND ADJUDGED, that the petition is dismissed.

Dated: September 13, 2017 at

Indian Lake, New York

__________________________

S. Peter Feldstein

Acting Supreme Court Justice Footnotes

Footnote 1:The Department of Correctional Services and the Division of Parole merged to become the Department of Corrections and Community Supervision on March 31, 2011, however, same is referred collectively as "DOCCS" herein.