Matter of Peoples v Annucci

[*1] Matter of Peoples v Annucci 2023 NY Slip Op 23193 Decided on June 30, 2023 Supreme Court, Albany County Farrell, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 30, 2023
Supreme Court, Albany County

In the Matter of the Application of Leroy Peoples, Petitioner,

against

Anthony Annucci, Acting Commissioner of the New York State Department of Corrections, Respondent.



Index No. 904228-23


Patrick M. McGowan, Esq., Prisoners Legal Services of New York for Plaintiff

Mark J. Dolan, Esq., Office of the Attorney General James R. Farrell, J.

The following papers numbered 1 to 8 were read on this CPLR Article 78 petition:

PAPERS NUMBERED
Notice of Petition, Verified Petition, Exhibits 1-8, Memorandum of Law 1-4
Answer, Exhibits A-D, Memorandum of Law 5-7
Affirmation in Reply 8

Petitioner, Leroy Peoples, commenced this CPLR Article 78 proceeding challenging Respondent's February 22, 2023 determination denying Petitioner's request to receive 180 days of retroactive earned time credit, pursuant to Penal Law §70.40(4), for periods of time when he was released to post-release supervision.

Background and Procedural History

Petitioner is an incarcerated individual presently confined to Clinton Correctional Facility. On January 27, 2005, Petitioner was sentenced by the Queens County Supreme Court as a violent felony offender with a prior violent felony conviction to an indeterminate term of 8 years to 16 years and a 16-year determinate term and a 5-year period of post-release supervision for two counts of Rape in the First Degree (the "2005 sentence"). The Queens County Supreme Court certified Petitioner as a sex offender and imposed both counts of the 2005 sentence to run [*2]concurrently with each other. On May 26, 2005, Petitioner was received by the Department of Corrections and Community Supervision ("DOCCS"). The New York City Department of Correction credited the 2005 sentence with 713 days of jail time for June 13, 2003 to May 25, 2005.

On August 3, 2005, Petitioner was resentenced by the Queens County Supreme Court as a violent felony offender with a prior violent felony conviction to an indeterminate term of 3 1/3 years to 10 years [FN1] and a 16-year determinate term and a 5-year period of post-release supervision for two counts of Rape in the First Degree. The Queens County Supreme Court certified Petitioner as a sex offender and imposed both counts of the 2005 resentence to run concurrently with each other.

Petitioner was released from DOCCS custody to post-release supervision on June 6, 2019. On August 6, 2019, Petitioner was declared delinquent in his post-release supervision. Petitioner was returned to DOCCS as a post-release supervision violator and credited with 345 days of parole jail time credit for August 6, 2019 to July 15, 2020.

Petitioner was again released from DOCCS to post-release supervision on February 4, 2021. On June 18, 2021, a parole violation warrant was lodged and on June 24, 2021, Petitioner was declared delinquent. On May 18, 2022, a final revocation hearing was held. Of the nine charged violations, seven charges were withdrawn and dismissed; two were unsupported by clear and convincing evidence; and one charge was sustained. The Administrative Law Judge ("ALJ") issued a finding that Petitioner first engaged in conduct underlying the sustained violation on June 24, 2021 [FN2] and set Petitioner's modified date of delinquency from community supervision to that date. The ALJ ordered Petitioner returned to DOCCS custody until the maximum expiration date of his sentence. Petitioner was returned to DOCCS as a post-release supervision violator and credited with 358 days of parole jail time for June 24, 2021 to June 16, 2022.

On February 10, 2023, through counsel, Petitioner submitted a request to DOCCS' Office of Sentencing Review requesting that Petitioner be awarded 180 days of retroactive earned time credit (RETC) pursuant to Penal Law §70.40(4)(c). Petitioner identified two periods of time during which he successfully completed community supervision in compliance with the terms of his release, to wit: June 6, 2019 to August 5, 2019, and February 4, 2021 to June 23, 2021. Petitioner asserted that this period encompassed six 30-day blocks of time during which Petitioner complied with his release conditions thereby entitling him to 180 of RETC under the statute. On February 22, 2023, Petitioner's request was denied because Petitioner "was not subject to community supervision on September 17, 2021 or March 1, 2022 and is currently incarcerated[,] he will not be eligible to receive retroaction earned time credit until he is released to community supervision." Subsequently, Petitioner commenced this CPLR Article 78 proceeding and Respondent answered the petition.

Respondent contends that because Petitioner was in violation status and incarcerated pending a revocation hearing at the time the legislation became effective, he was not "subject to [*3]community supervision" so as to make him eligible to receive RETC. Respondent argues that Petitioner would not be eligible to receive RETC until he is restored to post-release supervision. In reply, Petitioner argues that a pending parole violation does not make a person ineligible to immediately receive RETC. Petitioner argues that a person released to post release supervision and who has served a period of time under community supervision is thereafter "subject to community supervision" until the maximum expiration of their sentence or post-release supervision term, regardless of whether they remain in the community, face a pending revocation proceeding, or are returned to DOCCS on a sustained violation. Petitioner further argues that the statute authorizes an RETC award to be delayed to only one class of individuals, to wit: persons who were "serving a term of reincarceration for a sustained parole violation" on March 1, 2022 (the effective date of the statute).

"When presented with a question of statutory interpretation, our primary consideration is to ascertain and give effect to the intention of the Legislature. The statutory text is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning" (Matter of DaimlerChrysler Corp., v Spitzer, 7 NY3d 653, 660 [2006] [internal quotation marks and citation omitted]; accord Hauser v Fort Hudson Nursing Ctr., Inc., 202 AD3d 45, 48 [3d Dept 2021]). "Courts must construe the provisions of the challenged law together unless a contrary legislative intent is expressed, and harmonize the related provisions in a way that renders them compatible" (Hauser v Fort Hudson Nursing Ctr., Inc., 202 AD3d 45, 48 [3d Dept 2021] [internal quotation marks and citation omitted]).

Relevant portions of Penal Law §70.40, the legislation known as "Less is More", state:

Earned time credits. (a) Any person subject to community supervision shall be awarded earned time credits. The calculation of earned time credit periods shall begin on the releasee's first day of community supervision and shall be awarded after each completed thirty day period in compliance with the terms of their community supervision. Any such awarded earned time credits shall be applied against such person's unserved portion of the maximum term, aggregate maximum term or period of post-release supervision for any current sentence . [emphasis added].(c) Retroactive earned time credits shall be awarded to eligible persons subject to community supervision at the time this legislation becomes effective, provided, however, that the maximum allowable retroactive earned time credit awarded shall not exceed a period of two years. Retroactive earned time credits shall not be awarded to any releasee serving a term of reincarceration for a sustained parole violation at the time of the effective date of the chapter of the laws of two thousand twenty-one that added this subdivision until the releasee is returned to community supervision . (emphasis added).(e) Earned time credits may be withheld or revoked for the thirty-day period commencing from the date of violative behavior as sustained at a final revocation hearing, or for the period during which a releasee absconded from supervision, as sustained at a final revocation hearing. Earned time credits may not be earned and shall be suspended: (i) during a period of reincarceration imposed for any sustained violation; (ii) during the period in which the individual has absconded; or (iii) pending the outcome of a preliminary or final revocation hearing. If, at the preliminary hearing, there is no finding by a preponderance of the evidence of a violation of a condition of release in an important respect or a violation is not sustained at the final revocation hearing, then the individual shall be deemed to have been in compliance with the terms of release and shall [*4]be awarded earned time credits from the period in which the accrual was suspended. If a violation is sustained, the calculation of an earned time credit period shall recommence on the thirty-first day after the date of the violative behavior or, if the sustained violation or conviction resulted in a term of reincarceration, on the day the releasee is restored to community supervision, whichever is later.[emphasis added].

Here, Petitioner's suggested interpretation of the statute is contrary to the legislative intent and would render related provisions regarding post-release supervision incompatible. It is clear from a review of related provisions of the "Less is More" legislation that the Legislature did not consider a releasee who is in violation status to be "subject to community supervision." The statute contemplates that earned time credits cannot be earned and shall be suspended pending the outcome of a preliminary or final revocation hearing and where the releasee was reincarcerated, the earned time credit period would not recommence until the day the releasee is restored to community supervision (see Penal Law §70.40[4][e]). Furthermore, in the context of revocation of post release supervision, Penal Law §70.45, entitled "Determinate sentence; post release supervision," and Executive Law §259-i, entitled "Procedures for the conduct of the work of the state board of parole" both state that a person should be "restored" to post release supervision if a violation is not sustained (see Penal Law §70.45[4] and [5]; Executive Law §259-i[3][c][vii]; [d]; [f][ix][xii]; [g]; [h]). Thus, it follows that during the time period prior to a determination on the violation, the releasee is not "subject to community supervision" because if they were, they would not need to be "restored" to community supervision. Indeed, at the relevant time herein, Petitioner was not subject to community supervision as he was incarcerated on the violation of his post release supervision pending his revocation hearing. Under the statute, earned time credits are suspended and cannot be earned during such time period (see Penal Law §[4][e][iii]). In would be inconsistent with the statutory framework for individuals to be awarded earned time credits retroactively for a time period during which the Legislature specifically indicates such credits are suspended and cannot be earned. Moreover, the Court is not persuaded that Petitioner should be awarded RETC prior to his release because he will not be released to post release supervision. That Petitioner will have completed the maximum term of his sentence; and therefore, not be restored to or subject to community supervision following his release, is of his own making — he has repeated violated the terms of his post release supervision resulting in his reincarceration for the maximum expiration of his sentence.

Based upon the foregoing, it is hereby

ORDERED that the petition is dismissed in its entirety.

This constitutes the Decision and Order of the Court.

Dated: June 30, 2023
ENTER:
Monticello, NY

_________________________________
HON. JAMES R. FARRELL, A.J.S.C.

Pursuant to CPLR §5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written [*5]notice of its entry, the appeal must be taken within thirty days thereof. Footnotes

Footnote 1: On January 28, 2015, an amended sentence and commitment was issued designating Petition a juvenile offender pertaining to one count of Rape in the First Degree culminating in his 3 1/3 years to 10 years sentence.

Footnote 2: Petitioner's initial delinquency date was May 12, 2021.