People ex rel. Hicks v. Duncan

—Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered October 30, 2000 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing. In August 2000, petitioner commenced this CPLR article 70 proceeding alleging that he is unlawfully detained due to an improper sentence computation. Specifically, he claims that he is entitled to a credit toward his State sentence for time he served in Federal custody. Supreme Court dismissed the application, finding that, contrary to petitioner’s assertion, his State sentence did not begin to run when he was in the custody of the New York City Department of Corrections for five days before Federal authorities removed him to a Federal facility. The court further determined that even if petitioner was successful in this argument, his earliest conditional release date would be in February 2002 and, thus, he is not entitled to immediate release from custody. Petitioner appeals. We affirm the dismissal of petitioner’s application, albeit on a different ground than that expressed by Supreme Court. The record reveals that petitioner unsuccessfully advanced the identical argument in a CPLR article 78 proceeding which was dismissed by Supreme Court, New York County, in March 2000. Inasmuch as petitioner was afforded a full and fair opportunity to litigate the issue in that proceeding, he is collaterally estopped from relitigating it in this proceeding (see, Matter of Allen v New York State Div. of Parole, 252 AD2d 691, 691-692; Matter of McAllister v Division of Parole of N. Y. State, 186 AD2d 326, 327). Crew III, J. P., Peters, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.