People ex rel. Dennis v. Pisciotti

—Judgment unanimously affirmed without costs. Memorandum: Petitioner appeals from a judgment denying his petition for a writ of habeas corpus. He concedes that this proceeding is moot because he has already served his sentence, but urges this Court to address the issue raised herein because it falls within an exception to the mootness doctrine. We agree with petitioner that the issue falls within an exception to the mootness doctrine (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715), but we nevertheless affirm. Petitioner was convicted of two counts of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192 [2], [3]; § 1193 [1] [c]) and was sentenced to four months of weekend jail time and five years of probation. After he had completed the intermittent incarceration portion of the sentence, he pleaded guilty to a violation of probation and was sentenced to a definite term of incarceration of one year. Petitioner contends that he was entitled to a four-month credit toward the one-year sentence. We disagree. County Court properly gave petitioner credit only for the number of days that he was actually incarcerated (see, Penal Law § 70.30 [3]; § 85.05 [4]; People ex rel. Fancher v Wasser, 244 AD2d 79, 80-81; see also, Matter of Hawkins v Coughlin, 72 NY2d 158, 162-163). (Appeal from Judgment of Wayne County Court, Kehoe, J. — Habeas Corpus.) Present — Denman, P. J., Lawton, Hayes, Pigott, Jr., and Scudder, JJ.