Ryans v. Annucci

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered November 6, 2006 in Clinton County, which dismissed 1002 petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Correctional Services denying petitioner’s request for a recalculation of his parole eligibility date. Upon his conviction of murder in the second degree, petitioner was sentenced in 2005 to a term of imprisonment of 25 years to life. He thereafter commenced this CPLR article 78 proceeding seeking jail time credit for time that he had served in local custody prior to the commencement of other criminal sentences imposed in 1989, as well as credit for time that he spent under parole supervision for the 1989 sentences. Supreme Court dismissed the petition, prompting this appeal. The time that petitioner served in local custody before beginning his 1989 sentences cannot be credited toward his 2005 prison sentence and, further, petitioner already received credit for that time against his 1989 sentences (see Penal Law § 70.30 [3]; Matter of Nieves v Department of Correctional Servs., 28 AD3d 1023, 1024 [2006]). Likewise, the time that petitioner spent on parole for his 1989 sentences cannot be credited toward the time to be served with respect to his 2005 sentence (see Matter of McCormack v Kuhlmann, 188 AD2d 779, 780 [1992]). Accordingly, the judgment is affirmed. Cardona, P.J., Mercure, Crew III, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.