McCormack v. Kuhlmann

Appeal from a judgment of the Supreme Court (Williams, J.), entered February 13, 1992 in Sullivan County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review respondents’ determination computing petitioner’s prison sentence. Petitioner was sentenced in 1969 to three concurrent prison terms with maximum terms of three years and 10 months. After serving a portion of that sentence, petitioner was paroled; he was subsequently arrested on a charge of murder. Upon conviction of that crime, petitioner was sentenced to a prison term of 25 years to life. On this appeal, petitioner contends that in determining his parole eligibility date for the second offense respondents erred in failing to credit him for the time he was released on parole and for jail time served prior to his sentencing in 1969. We agree with Supreme Court that respondents correctly interpreted the applicable statutory provisions. This Court has held that time during which a person is on parole is not to be credited toward the time to be served as the result of a subsequent conviction (see, Matter of De Berry v Moody, 89 AD2d 1035, lv denied 58 NY2d 604). Similarly, petitioner is not entitled to a credit on the time to be served on the subsequent conviction for time served before his sentencing on the prior convictions and already credited to those convictions (see, People v O’Garro, 150 AD2d 809; Matter of Gonzalez v Kearney, 62 AD2d 345). We have considered petitioner’s other arguments and find them to be without merit. Mikoll, J. P., Yesawich Jr., Mercure, Crew III and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.