People ex rel. Giannone v. Crowley
| Decision Date | 30 April 1975 |
| Citation | 81 Misc.2d 879,367 N.Y.S.2d 940 |
| Parties | The PEOPLE of the State of New York ex rel. Joseph GIANNONE, Relator, v. James A. CROWLEY, as Superintendent, Camp Adirondack, Dannemora, New York, Respondent. |
| Court | New York Supreme Court |
Louis J. Lefkowitz, Atty. Gen., Albany (Edgar G. Purcell, Jr., Plattsburgh, of counsel), for respondent.
Joseph Giannone, pro se.
DECISION
In this proceeding for a Writ of Habeas Corpus, relator, a resident of Camp Adirondack, contends that his jail time has been improperly credited to his concurrent prison sentences. As a result, he argues that the day for his conditional release has already passed.
On November 7, 1973, the Supreme Court of Richmond County sentenced the relator to an indeterminate sentence of three years for the confessed crime of grand larceny, third degree. When received at Ossining Correctional Facility on November 27, 1973, he had earned 338 days of jail time according to the certification endorsed on his commitment. While at Ossining and on December 12, 1973, he was again taken into custody by Richmond County officials for appearance in Supreme Court on the felony charge of unlawful possession of weapons. Upon his guilty plea, he received an additional indeterminate three year sentence which was ordered to run concurrent with his 'sentence now being served'. His resulting commitment to Ossining bore an endorsement certifying that petitioner had spent 49 days in jail on this later sentence. 1
Petitioner contends that his conditional release date should have been December 18, 1974 while respondent computes it to be October 29, 1975.
In computing the relator's maximum release and conditional release dates, the respondent Superintendent used this method: Each sentence was considered independently and the jail time served with respect to it was applied. Thus, for the first imposed indeterminate three year sentence (grand larceny) the following computation was used:
Years Months Days
------ ------ ----
Maximum sentence (3 years) 3 0 0
Less: Jail time credit (338 days) 0 11 8
------ ------ ----
Time to be served 2 0 22
Add: Date received in prison 1973 11th 27th
Maximum expiration sentence date 1975 12th 18th
Less: Anticipated "good time' credit 2 1 0 0
Possible conditional release date 1974 12th 18th
Similarly, the computation for the later sentence shows:
Years Months Days
------ ------ ----
Maximum sentence 3 0 0
Less: Jail time credit (49 days) 1 19
------ ------ ----
Time to be served 2 10 11
Add: Date received in prison 1973 12th 19th
--------------------
Maximum expiration date 1976 10th 29th
Less: Anticipated "good time' 1 0 0
Possible conditional release date 1975 10th 29th
The Penal Law provides that when indeterminate concurrent sentences are imposed '. . . 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(a). Accordingly, relator's later sentence for the weapons charge would control if no credit is given on that sentence for the 338 days spent in jail on the earlier grand larceny charge.
Inmate Giannone insists that his conditional release date should be December 18, 1974, since, he argues, all his jail time should be credited to both sentences. The date of December 18, 1974 is arrived at by applying the 338 day jail time credit to the earlier sentence. To this allocation, both relator and respondent agree. The disagreement arises when the respondent refuses to apply the same jail time credit to Both sentences. When respondent applies the 338 days only to the earlier sentence, he follows the literal provision of § 70.30, subd. 3 of the Penal Law which provides:
(emphasis supplied)
Assuming that the respondent has correctly applied the jail time credit, the second sentence would control not only because it was imposed later in time (and thus have a longer maximum) but also because less jail time could be credited to it. The inmate spent a grossly longer period of time in jail on the earlier larceny charge thus leaving it with the Shorter unexpired period of time to be run. The weapons charge sentence would then have the 'longest unexpired time to run' and its maximum term controls. Penal Law § 70.30 subd. 1(a), Supra. It is with this latter premise that the petitioner takes issue. He contends that by following the respondent's method of computation, in effect, he is compelled to serve what is tantamount to consecutive sentences since the 338 days he spent in confinement on the 'shorter' larceny charge (albeit jail rather than prison) are days of confinement actually 'lost'. Crediting these days only to the earlier sentence compels such sentence to be the shorter, with the result that just brief jail time is credited to the later sentence and what were intended as concurrent sentences are not. The result: he will have spent 387 days in jail (338 plus 49) with no effective credit at all being reflected on his prison term. Were his jail time credited to Both sentences, his conditional release date would long have passed. As it is, with the conditional release date of October 29, 1975, proposed by the respondent, relator Giannone will have spent from January 1, 1973 to October 29, 1975--barely two months short of three years--in confinement.
Respondent's position indeed embraces a circular argument in that how the jail time credit is applied will determine which sentence will be the longer and will control. But the literal reading of the statute requires the application of respondent's method of computation since the statute restricts application of jail time credit 'against Each such sentence.' Had the legislature intended the credit to be applied to Both sentences, the adjectives Any, all or Both could or would have been used. They were so employed in the first paragraph of Penal Law § 70.30, the section under which relator Giannone's term was calculated. Thus, the statute is explicit in requiring that time served in Prison be credited against the minimum of All rather than a particular sentence where sentences are concurrent. 3
Thus, construction of the explicit language of the statute compels dismissal of Giannone's petition. Yet, no reported decision can be found on facts closely similar to those embraced in his matter.
Matter of Canada, 29 N.Y.2d 853, 328 N.Y.S.2d 4, 277 N.E.2d 925, could be considered determinative of the issue. As here, Canada had been transferred from Ossining Correctional Facility where he was serving a 1 1/2 year sentence imposed in May 1968, to the Manhattan Detention Center to await trial on a different charge. That trial resulted in a seven year sentence imposed in September 1968 to run Concurrently with his first sentence. Canada claimed that since his two sentences merged, he was entitled to have the jail time he earned awaiting trial on the Later charge, credited to the seven year or longer sentence. Special Term sustained Canada's position. The Appellate Division reversed (Matter of Canada v. McGinnis, 36 A.D.2d 830, 321 N.Y.S.2d 166) holding that since Canada was serving a sentence under a prior conviction when transferred to jail, such time served in jail was simply a part of his first sentence and 'in such case, credit cannot be given for the same period of time toward the second sentence.'. 4 The Court of Appeals affirmed without opinion.
Although Canada could be interpreted as holding only that a prisoner serving a prison sentence when transferred to a jail for purposes of trial on a different charge, is credited for such jail time only on the previously imposed sentence he had been serving, it also is dispositive of the dual credit issue raised here since concurrent sentences were imposed. In the syllabus to the Court of Appeals decision, reference is made to sub-paragraph (a) of subdivision 3 of § 70.30 of the Penal Law relating to jail time credit for concurrent sentences so that apparently the argument for dual credit because of concurrent sentences entered the Court's consideration. Otherwise, the statutory reference to that subparagraph becomes superfluous.
Since the Canada ...
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