People ex rel. Leonard v. New York State Dep't of Corr. Servs.

• Decision Date: 16 May 2012
• Docket Number: Index No. 21,187-12
• Citation: 2012 NY Slip Op 31300
• Parties: The People of the State of New York ex rel FRANKLIN LEONARD, #99-B-0631, Relator v. New York State Department of Correctional Services, Respondent
• Court: New York Supreme Court

2012 NY Slip Op 31300

The People of the State of New York
ex rel FRANKLIN LEONARD, #99-B-0631, Relator
v.
New York State Department of Correctional Services, Respondent

Index No. 21,187-12

STATE OF NEW YORK SUPREME COURT : COUNTY OF WYOMING

Dated: May 16, 2012

PRESENT: HONORABLE MARK H. DADD
Acting Supreme Court Justice

At a term of Supreme Court held in and for the County of Wyoming, at Warsaw, New York, on the 16th day of May, 2012.

For the Relator
WYOMING COUNTY-ATTICA LEGAL
AID BUREAU, INC.
Norman P. Effman, Director

For the Respondent
ERIC T. SCHNEIDERMAN, Attorney General
by Darren Longo
Assistant Attorney General

MEMORANDUM AND JUDGMENT

By petition for a writ of habeas corpus verified on March 19, 2012, Franklin Leonard contends that he is entitled to immediate release because he is incarcerated for violating the release conditions of a term of Post Release Supervision ["PRS"] which was not properly imposed upon him by the court that sentenced him. The relator appeared with counsel assigned by the amended writ dated April 4, 2012. Respondent requests that the petition be denied upon the affirmation and return of Darren Longo, Assistant Attorney General, dated April 18, 2012. Also opposing the petition, the Monroe County District Attorney's Office submits the

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affirmation of Leslie E. Swift, Assistant District Attorney, dated April 12, 2012. In further support of the petition, relator's counsel submits a reply affirmation dated April 25, 2012, and the relator submits an answering affidavit sworn to on April 27, 2012.

The relator is serving an aggregate sentence composed of multiple prison terms. He was first received into state custody on April 1, 1999, after being sentenced in Monroe County on January 26, 1999, to serve a term of 3½to 7 years for his conviction for Criminal Possession of Stolen Property in the Third Degree under case number 98-0241. At that time he also received a determinate term of 7 years for his conviction of Robbery in the Second Degree under case number W3028-99, but the Monroe County Supreme Court subsequently vacated that conviction while granting the People leave to re-present the matter to the grand jury. After being re-indicted, the relator was tried and convicted of Robbery in the Second Degree and two counts of Grand Larceny in the Fourth Degree. On February 15, 2001, he received a determinate term of 5 years for the Robbery in the Second Degree count, and two indeterminate terms of 2 to 4 years for the two counts of Grand Larceny in the Fourth Degree. The Court imposed these terms to run concurrently with each other and consecutively with the term imposed in 1999 (see, Matter of Leonard v. Dushantinski, 4 A.D.3d 642 [3rd Dept., 2004]). Then on November 21, 2005, the relator received from the Orleans County Court an additional consecutive indeterminate term of 1½ to 3 years for his conviction of Attempted Assault in the Second Degree. Thus, combining the relator's multiple sentences in accordance with the provisions of Penal Law §70.30(l)(b) results in a controlling aggregate maximum term of imprisonment of 14 years. After crediting the relator with 129 days of jail time, the maximum expiration date initially calculated for his aggregate sentence was November 21, 2012.

The relator was granted conditional release on May 21, 2008, and he remained under parole supervision thereafter until he was declared delinquent on February 4, 2010. Restored to supervision on October 1, 2010, the relator was again declared delinquent on November 20, 2011. On January 24, 2012, he was returned to prison.

The Penal Law required that the relator's determinate sentence for Robbery in the Second Degree include a 5 year period of PRS (Penal Law §70.45[2]), and the commitment for the relator's February 15, 2001, sentence does contain the PRS term. Based upon this apparently valid commitment, the relator has treated the relator's periods under supervision as release to PRS, calculating his aggregate sentence accordingly. As required by Penal Law §70.45(5), while the relator...