Hawkins v. Coughlin

• Citation: 132 A.D.2d 381,523 N.Y.S.2d 542
• Parties: In the Matter of Joseph HAWKINS, a/k/a Joseph Davis, Appellant, v. Thomas A. COUGHLIN III, etc., et al., Respondents.
• Decision Date: 28 December 1987
• Court: New York Supreme Court Appellate Division

Page 542

523 N.Y.S.2d 542

132 A.D.2d 381

In the Matter of Joseph HAWKINS, a/k/a Joseph Davis, Appellant, v. Thomas A. COUGHLIN III, etc., et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Dec. 28, 1987.

Philip L. Weinstein, New York City (Lynn W.L. Fahey, of counsel), for appellant.

Robert Abrams, Atty. Gen., New York City (Gerald J. Ryan and Burton Herman, of counsel), for the State respondents.

Peter L. Zimroth, Corp. Counsel, New York City (Leonard Koerner and Pamela Seider Dolgow, of counsel), for New York City respondents.

Before MANGANO, J.P., and BROWN, NIEHOFF, SULLIVAN and HARWOOD, JJ.

SULLIVAN, Justice.

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, 503 N.Y.S.2d 476). To the extent that our prior decision in Henderson v. Reid, 79 A.D.2d 1019, 435 N.Y.S.2d 290 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 or commitment was lodged during the pendency of such custody " (emphasis added).

In Matter of Kalamis v. Smith, 42 N.Y.2d 191, 197, 397 N.Y.S.2d 690, 366 N.E.2d 781, 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.

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 of Wallkill Correctional Facility, 65 A.D.2d 249, 412 N.Y.S.2d 675, affd. 48 N.Y.2d 858, 424 N.Y.S.2d 432, 400 N.E.2d 371, which construed Penal Law § 70.30(2-a). This view was rejected by the Court of Appeals ( see, Matter of Witteck v. Superintendent of Wallkill Correctional Facility, 48 N.Y.2d 858, 424 N.Y.S.2d 432, 400 N.E.2d 371, 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 of Wallkill Correctional Facility, 65 A.D.2d 249, supra, at 251, 412 N.Y.S.2d 675). Thereafter, in People ex rel. Dunne v. Jones, 77 A.D.2d 729, 430 N.Y.S.2d 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 of Wallkill Correctional Facility (supra; see also, McKinney's Consolidated Laws of N.Y., 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 A.D.2d 318, 513 N.Y.S.2d 568, appeal dismissed, 70 N.Y.2d 870, 523 N.Y.S.2d 493, 518 N.E.2d 5 [1987], the decision in Henderson was based upon two cases that are inapposite. Netograph Mfg. Co. v. Scrugham, 197 N.Y. 377, 381, 90 N.E. 962, 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 was held to be "constructively in the custody of the law". Similarly, Matter of Orseck v. Richards, 260 App.Div. 613, 614, 23 N.Y.S.2d 499, 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 N.Y. 478, 41 N.E.2d 62 and People v. Santos, 31 A.D.2d 508, 298 N.Y.S.2d 526, affd. 25 N.Y.2d 976, 305 N.Y.S.2d 365, 252 N.E.2d 861, cert. denied 397 U.S. 969, 90 S.Ct. 1010, 25 L.Ed.2d 263, simply hold that parolees are in constructive custody for the purposes of determining the reasonableness under the Fourth Amendment of a warrantless search. ^* However, in People ex rel. Wilder v. Markley, 26 N.Y.2d 648, 307 N.Y.S.2d 672, 255 N.E.2d 784, rearg. denied 27 N.Y.2d 737, 314 N.Y.S.2d 1029, 262 N.E.2d 683, 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 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.

Appeal by the petitioner from a judgment of the Supreme Court, Queens County (Berkowitz, J.), dated August 25, 1986.

ORDERED that the judgment is affirmed, without costs or disbursements.

NIEHOFF, J., concurs.

MANGANO, J.P., concurs, in a separate memorandum.

HARWOOD, J., dissents, and votes to reverse the judgment, on the law, and to grant the petition, with an opinion in which BROWN, J., concurs.

MANGANO, Justice Presiding (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 A.D.2d 1019, 435 N.Y.S.2d 290, in favor of a more cogent position ( see, McGrath v. Kristensen, 340 U.S. 162, 178, 71 S.Ct. 224, 233, 95 L.Ed. 173 [Jackson, J., concurring] ).

HARWOOD, Justice (dissenting).

We are called upon to review the denial to the petitioner of credit, against a sentence imposed on October 19, 1981, with local jail and State prison time originally credited against a sentence imposed pursuant to an earlier but subsequently vacated conviction, the underlying charge of which culminated in dismissal. In this context, we have re-examined our holding in Henderson v. Reid, 79 A.D.2d 1019, 435 N.Y.S.2d 290. We reaffirm that decision and respectfully disagree with our colleagues in the majority and with the contrary determinations of the Appellate Divisions of the Third and Fourth Departments ( People ex rel. Dunne v. Jones, 77 A.D.2d 729, 430 N.Y.S.2d 720; People ex rel. Knox v. Kelly, 126 A.D.2d 318, 513 N.Y.S.2d 568, appeal dismissed 70 N.Y.2d 870, 523 N.Y.S.2d 493, 518 N.E.2d 5 [1987] ).

In November 1975 the petitioner was convicted of robbery in the first degree after a nonjury trial conducted in the Supreme Court, Queens County. His sentence of five to 15 years imprisonment was reduced to two and one-half to seven and one-half years, but the judgment was otherwise affirmed by this court ( People v. Hawkins, 63 A.D.2d 719, 405 N.Y.S.2d 128). Leave to appeal was denied by the Court of Appeals ( People v. Hawkins, 45 N.Y.2d 780, 409 N.Y.S.2d 1037, 381 N.E.2d 172). In 1978 the petitioner was paroled after having been incarcerated for a total of three years, six months and one day. 257 days of that period represented the petitioner's presentence incarceration credited against the two and one-half to seven and one-half year sentence (see, Penal Law § 70.30[3] ).

In August 1980 while on parole from the 1975 robbery conviction, the petitioner was arrested in Queens County and charged with sodomy in the first degree. He has apparently been incarcerated since that time. ¹ In July 1981 the petitioner brought a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York, asserting that the proof upon which the 1975 robbery conviction was premised did not establish his guilt beyond a reasonable doubt and that the Trial Judge in that case had drawn impermissible inferences from the petitioner...