Hawkins v. Coughlin

OPINION OF THE COURT Sullivan, J. On this appeal we are called upon to determine whether a parolee is in custody so as to trigger the ameliorative provisions of the last paragraph of Penal Law § 70.30 (3). We hold that this paragraph is only applicable when a defendant is in actual custody. Accordingly, the Supreme Court, Queens County, properly dismissed the proceeding (132 Misc 2d 45). To the extent that our prior decision in Henderson v Reid (79 AD2d 1019) would indicate otherwise, we decline to follow it. The facts in this case are set forth in the dissenting opinion. The pertinent portion of Penal Law § 70.30 (3), which is entitled "Jail time”, states: "In any case where a person, has been in custody due to a charge that culminated in a dismissal or an acquittal, the amount of time that would have been credited against a sentence for such charge, had one been imposed, shall be credited against any sentence that is based on a charge for which a warrant of commitment was lodged during the pendency of such custody” (emphasis added). In Matter of Kalamis v Smith (42 NY2d 191, 197), Judge Wachtler, writing for a unanimous court, stated: "The primary purpose of the statute is to give a person convicted of a crime, credit for the time he has spent in local custody awaiting disposition of the charge * * * As a general rule then a person who has been held in local custody, on a certain charge, prior to the formal commencement of his sentence on that charge, is entitled to credit the time previously spent in the local facility before and after sentence was pronounced” (emphasis added). It is clear from a reading of these cases that a defendant is entitled to "jail time” credit only for the time spent in confinement in a local facility, i.e., that the custody referred to in Penal Law § 70.30 means actual custody. It follows therefore, that a defendant who is not in actual custody awaiting disposition of the charge, e.g., on bail or released on his own recognizance, is not entitled to credit for jail time for the time not in actual custody. [383] The argument of the dissenters that custody includes constructive custody, such as bail or parole, was put forth in the dissent of Presiding Justice Mahoney of the Appellate Division, Third Department, in Matter of Witteck v Superintendent (65 AD2d 249, affd 48 NY2d 858), which construed Penal Law § 70.30 (2-a). This view was rejected by the Court of Appeals (see, Matter of Witteck v Superintendent, 48 NY2d 858, supra) which affirmed on the opinion of Justice Greenblott, writing for the majority of the Appellate Division, that custody meant "actual custody” and not constructive custody (Matter of Witteck v Superintendent, 65 AD2d 249, 251, supra). Thereafter, in People ex rel. Dunne v Jones (77 AD2d 729), the Third Department refused to give jail time credit to a defendant who was released on bail pending appeal from a conviction for attempted sexual abuse and while on bail was arrested on a new charge of possession of a weapon. The court held that the term custody used throughout Penal Law § 70.30 meant "actual custody”, citing Matter of Witteck v Superintendent (supra; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 236). Our prior decision in Henderson v Reid (supra) appears to be the only case that construes the term custody in Penal Law § 70.30 (3) to include constructive custody so as to give jail time credit to a defendant who is on bail or parole when arrested for a new crime. As pointed out by Justice Boomer of the Appellate Division, Fourth Department, in People ex rel. Knox v Kelly (126 AD2d 318, appeal dismissed 70 NY2d 870), the decision in Henderson was based upon two cases that are inapposite. Netograph Mfg. Co. v Scrugham (197 NY 377), holds that a nonresident defendant who is on bail is not exempt from service of process in a civil action when he returns to the State for trial. While such an exemption would normally apply to a nonresident who voluntarily enters the State to testify, the defendant in Netograph (supra, at 381) was held to be "constructively in the custody of the law”. Similarly, Matter of Orseck v Richards (260 App Div 613, 614), held that a Justice Court that adjourns a matter without date does not lose jurisdiction over a defendant released on bail, and so for certain purposes and for those purposes only, a person on bail or parole may be considered in constructive custody. Similarly, People ex rel. Natoli v Lewis (287 NY 478) and People v Santos (31 AD2d 508, affd 25 NY2d 976, cert denied 397 US 969) simply hold that parolees are in constructive custody for the purposes of determining the reasonable [384] ness under the Fourth Amendment of a warrantless search.* However, in People ex rel. Wilder v Markley (26 NY2d 648, rearg denied 27 NY2d 737), it was held that a parolee is not in custody so as to entitle him to a writ of habeas corpus. Neither the legislative history of Penal Law § 70.30 (3) as set forth in People ex rel. Knox v Kelly (supra), nor any of the other cases construing Penal Law § 70.30, nor the cases cited within the decision itself, support the position in Henderson (supra) that someone who is on bail or parole is in custody within the meaning of Penal Law § 70.30 (3). An examination of all these authorities as well as logic lead inexorably to the conclusion that this section only applies to a defendant who is in actual custody. Since the petitioner was on parole and not in actual custody at the time he was arrested for sodomy in the first degree, he is not entitled to any jail time credit for time spent in confinement prior to the date of his arrest on that charge. Accordingly, the judgment dismissing the petition should be affirmed. Mangano, J. P. (concurring). I join in the majority opinion of Justice Sullivan, and like the late Justice Robert Jackson of the United States Supreme Court, abandon my contrary views in Henderson v Reid (79 AD2d 1019), in favor of a more cogent position (see, McGrath v Kristensen, 340 US 162, 178 [Jackson, J., concurring]). Footnotes [*] We disagree with the claim in the dissent that People ex rel. Middleton v Zelker (42 AD2d 998, affd 36 NY2d 691), Matter of Kalamis v Smith (42 NY2d 191), and Matter of Peterson v New York State Dept. of Correctional Servs. (100 AD2d 73) apply a constructive custody concept to Penal Law § 70.30 (3). In each of these cases, the defendant Was in actual custody in a local facility when a warrant or detainer was lodged by another jurisdiction. In Middleton, while the defendant was actually confined in Kings County, a warrant issued by Westchester County was filed against him for an unrelated crime. He pleaded guilty in Kings County and was thereafter returned to Westchester where he again pleaded guilty and was sentenced. He was thereafter returned to Kings County for sentence. This court held that the defendant was entitled to jail time credit against his Westchester sentence for the time he spent in custody in Kings County from the date of the filing of the Westchester warrant until his physical return to Westchester County since, although in actual custody of Kings County, he was within the constructive custody of Westchester County by virtue of the warrant. Both Kalamis and Peterson have similar fact patterns. These cases do not support the proposition that someone on bail or parole is in custody within the meaning of Penal Law § 70.30 (3).