Kalamis v. Smith

• Decision Date: 05 July 1977
• Citation: 397 N.Y.S.2d 690,366 N.E.2d 781,42 N.Y.2d 191
• Parties: , 366 N.E.2d 781 In the Matter of Babis KALAMIS, Appellant, v. Harold J. SMITH, as Superintendent of Attica Correctional Facility, Respondent. In the Matter of Gerard A. COLLINS, Appellant, v. Leon J. VINCENT, as Superintendent of Green Haven Correctional Facility, Respondent. In the Matter of Richard BUSH, Appellant, v. Harold J. SMITH, as Superintendent of Attica Correctional Facility, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 690

397 N.Y.S.2d 690

42 N.Y.2d 191, 366 N.E.2d 781

In the Matter of Babis KALAMIS, Appellant, v. Harold J. SMITH, as Superintendent of Attica Correctional

Facility, Respondent.

In the Matter of Gerard A. COLLINS, Appellant, v. Leon J. VINCENT, as Superintendent of Green Haven

Correctional Facility, Respondent.

In the Matter of Richard BUSH, Appellant, v. Harold J. SMITH, as Superintendent of Attica Correctional

Facility, Respondent.

Court of Appeals of New York.

July 5, 1977.

Joseph A. Shifflett, Nathaniel A. Barrell and Eric L. Glazer, Buffalo, for appellant Babis Kalamis.

Louis J. Lefkowitz, Atty. Gen. (Frederick R. Walsh and Jean M. Coon, Albany, of counsel), for respondent Harold J. Smith.

Sally Mendola, William E. Hellerstein and Donald H. Zuckerman, New York City, for appellant Gerard A. Collins.

Louis J. Lefkowitz, Atty. Gen. (Joseph W. Henneberry and Samuel A. Hirshowitz, New York City, of counsel), for respondent Leon J. Vincent.

Joseph A. Shifflett, Nathaniel A. Barrell and Eric L. Glazer, Buffalo, for appellant Richard Bush.

Louis J. Lefkowitz, Atty. Gen. (Martin J. Siegel and Jean M. Coon, Albany, of counsel), for respondent Harold V. Smith.

WACHTLER, Judge.

In these three article 78 proceedings the petitioners, who are inmates at State correctional institutions, seek credit for jail time previously spent in local detention facilities. In each case the petitioner was sentenced on one charge and then was either held in a local facility or returned to a local facility to await disposition of another charge or charges which ultimately resulted in one or more additional sentences. The question common to all the appeals is whether the time spent in custody between the first sentence and a later one should be credited against the later sentence pursuant to subdivision 3 of section 70.30 of the Penal Law. In the Collins case the petitioner also seeks credit, against the second sentence, for time spent in a local facility prior to the first sentence.

The Kalamis case

In the first appeal Matter of Kalamis v. Smith, 51 A.D.2d 859, 379 N.Y.S.2d 561, the petitioner was charged with committing various crimes in three different counties. On November 14, 1973 the Nassau County Court sentenced him to 0 to 5 years for attempted robbery in the first degree. On January 2, 1974, while petitioner was still in the Nassau County jail, Suffolk County filed a detainer warrant against him. He was later sent to New York County where, on January 16, 1974 he was sentenced to 0 to 4 years for attempted burglary in the third degree. This sentence was to run concurrently with the first.

On January 30, 1974 he was sent to the State correctional institution at Green Haven. On February 14 he was transferred to the State institution at Clinton. Several days later (Feb. 20) he was sent to the Suffolk County jail to await disposition of the Suffolk County charge. He remained in that jail until December 9, 1974 when he was sentenced to 0 to 5 years for robbery in the third degree. This sentence is to run concurrently with the first two. He was returned to State prison on December 19, 1974.

Thus the petitioner is now serving three indeterminate sentences, imposed by three different courts, at three different times. However, because the sentences are to run concurrently "the maximum terms merge in and are satisfied by discharge of the term which has the longest unexpired time to run" (Penal Law, § 70.30, subd. 1, par. (a)). As a result the controlling sentence, that is, the one with the latest expiration date, is the Suffolk County sentence imposed on December 9, 1974.

Petitioner claims that he was in constructive custody of the Suffolk County authorities from January 2, 1974, the date the Suffolk County warrant was filed, until December 19, 1974, the date he was returned to State prison and thus should have this time credited against the controlling Suffolk County sentence. The courts below agreed that 28 days of this time (Jan. 2 to Jan. 30, 1974) should be credited to the Suffolk County sentence. On this appeal petitioner claims that the remainder of this time should be credited against this sentence pursuant to subdivision 3 of section 70.30 of the Penal Law. ¹

The relevant portion of subdivision 3 of section 70.30 of the Penal Law states:

"The maximum term of an indeterminate sentence imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence. * * * The credit herein provided shall be calculated from the date custody under the charge commenced to the date the sentence commences and shall not include any time that is credited against the term or maximum term of any previously imposed sentence to which the person is subject. Where the charge or charges culminates in more than one sentence, the credit shall be applied as follows:

"(a) If the sentences run concurrently, the credit shall be applied against each such sentence".

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. It is also intended to give him credit for the time spent in a local facility after pronouncement of sentence, since an indeterminate sentence does not formally commence until the person is received at a State institution (Penal Law, § 70.30, subd. 1), and a definite sentence does not formally commence until he is received at the institution named in the commitment (Penal Law, § 70.30, subd. 2). 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. Howeve even though a person has been held in local custody on a certain charge, he is not entitled to have the time credited against the sentence imposed on that charge if it has already been credited to a "previously imposed sentence."

The application of these principles becomes complicated when the petitioner has been held on several charges which result in multiple sentences. The commission staff which drafted the statute noted that under prior law there was no "rule with respect to the manner of calculating jail time when multiple sentences are imposed" (see Commission Staff Notes to the 1964 Draft of the Proposed Penal Code, § 30.30, subd. 3 (no Penal Law, § 70.30, subd. 3)). Thus they included, as a "new feature", the requirement that jail time should be credited when the charges culminate in more than one sentence and further provided that the time shall be credited against each such sentence if the sentences run concurrently. But when, as here, the concurrent sentences have been imposed at different times, can the time between the first and second sentence be credited to the second if it has already been credited to the first? Under these circumstances it would seem that the new general rule regarding multiple sentences is cut short by the specific exception relating to "previously imposed" sentences.

Here the Appellate Division held that once Kalamis formally commenced service of the first two sentences at State prison on January 30, 1974 all the time subsequently spent in custody, whether in State prison or the Suffolk County jail, was being credited against the prior sentences and could not be credited against the Suffolk County sentence. They held that this is required by "the clear mandate of section 70.30 and the holding in Matter of Canada v. McGinnis, 36 A.D.2d 830, 321 N.Y.S.2d 166, affd. 29 N.Y.2d 853, 328 N.Y.S.2d 4, 277 N.E.2d 925."

In the Canada case the defendant was arrested in Manhattan and released on bail in 1967. On February 6, 1968 he was arrested on a second charge and was held in the Manhattan House of Detention. On May 15, 1968 he was sentenced on the first charge to a term of 1 year, 3 months to 2 years, 6 months. On July 1, 1968 he was transferred to the State penitentiary at Sing Sing and formally commenced service of the first sentence. Ten days later he was returned to the Manhattan House of Detention to stand trial on the second charge. He was found guilty and, on September 26, 1968, was sentenced to an indeterminate term with a maximum of seven years. He claimed that the time spent in the Manhattan House of Detention awaiting the disposition of the second charge (July 11 Sept. 26, 1968) should be credited as jail time against the second sentence. The Appellate Division held that he was not entitled to credit this time against his second sentence because he "was serving a sentence under a prior conviction at the time of his transfer to the House of Detention and, consequently, the time served there was part of his first sentence" (36 A.D.2d 830, 321 N.Y.S.2d 166). We affirmed, without opinion (29 N.Y.2d 853, 328 N.Y.S.2d 4, 277 N.E.2d 925).

The holding of the Canada case is directly applicable here. Since Kalamis commenced the service of his first two sentences when he arrived at State prison on January 30, 1974 all the time later spent in custody, whether in State or local institutions, was credited against the first two sentences and could not be credited against the third, Suffolk County sentence. Kalamis in fact makes no effort to distinguish the Canada case. Instead he relies on our more recent holding in People ex rel. Middleton v. Zelker, 36 N.Y.2d 691, 366 N.Y.S.2d 411, 325 N.E.2d 871.

In Middleton the petitioner was arrested in Kings County on May 27, 1968 and held there to await disposition of a Kings County robbery charge. On June 27, 1968 the Westchester County authorities issued a detainer warrant on another robbery charge. This warrant was filed against him in Kings County. Nearly a year later (April 30, 1969) petitioner pleaded guilty, in Kings County, to robbery in...