People ex rel. Middleton v. Zelker
| Decision Date | 29 October 1973 |
| Citation | 348 N.Y.S.2d 576,42 A.D.2d 998 |
| Parties | The PEOPLE, etc., ex rel. Charles MIDDLETON, Appellant, v. John L. ZELKER, Superintendent of Green Haven Correctional Facility, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before SHAPIRO, Acting P.J., and GULOTTA, CHRIST, BRENNAN and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to article 78 of the CPLR to compel respondent to apply 556 days of jail time credit against two concurrent sentences imposed against petitioner, one in each of two counties, petitioner appeals from a judgment of the Supreme Court, Dutchess County, dated May 9, 1972, which dismissed the proceeding after a hearing.
Petitioner's notice of appeal is hereby amended to show the correct date of entry of the judgment, May 9, 1972, instead of June 15, 1971, which is the date of the underlying decision of Special Term.
Judgment reversed, on the law and in the interests of justice, and petition granted to the extent indicated herein, without costs.
On May 27, 1968 petitioner was arrested upon a Kings County charge and, while incarcerated there, a warrant issued on June 27, 1968 was filed against him by Westchester County authorities for an unrelated robbery. On April 30, 1969 he pleaded guilty to robbery in the third degree in satisfaction of the ensuing Kings County indictment. He was then transferred to Westchester County pursuant to the above-mentioned Westchester warrant and he similarly pleaded guilty there to robbery in the third degree, for which he was sentenced, on October 17, 1969, to an indeterminate term of imprisonment not to exceed seven years. Thereafter, he was transferred back to Kings County and on November 25, 1969 was sentenced there to an indeterminate term of imprisonment not to exceed four years, to run concurrently with the Westchester County sentence.
Under paragraph (a) of subdivision 1 of section 70.30 of the Penal Law, such sentences merge in and are satisfied by the term which has the longest unexpired time to run, the Westchester sentence in this case. In our opinion, it was error to credit petitioner with jail time on the Westchester sentence only from the time he was physically surrendered to Westchester. He is entitled to be credited with time served from the date of the issuance of the Westchester warrant (which we are treating as the filing date, since the proper agencies were unable to furnish that information), because from that date he was in the constructive custody of Westchester County. Therefore, he is entitled to 526 days of jail time credit. Subdivision 3 of section 70.30 of the Penal Law provides, Inter alia, that the maximum term of an indeterminate sentence imposed on a person shall be credited with the time he spent in custody prior to the commencement of the sentence as a result of the charge that culminated in it; and that, where the charge or charges culminate in more than one sentence and such sentences run concurrently, the credit shall be applied against each such sentence.
We do not find any valid reason why this section should not apply to the situation at bar. Moreover, p...
To continue reading
Request your trial
-
Hawkins v. Coughlin
...has been utilized to afford prisoners credit pursuant to the first paragraph of Penal Law § 70.30(3) ( see, People ex rel. Middleton v. Zelker, 42 A.D.2d 998, 348 N.Y.S.2d 576, affd. 36 N.Y.2d 691, 366 N.Y.S.2d 411, 325 N.E.2d 871; see also, Matter of Kalamis v. Smith, supra; cf., Matter of......
-
Peterson v. New York State Dept. of Correctional Services
...should receive a similar construction. Indeed, we would note that we implicitly adopted such a construction in People ex rel. Middleton v. Zelker, 42 A.D.2d 998, 348 N.Y.S.2d 576, affd. on mem. at App.Div. 36 N.Y.2d 691, 366 N.Y.S.2d 411, 325 N.E.2d 871 for, in that case, in which the petit......
-
Kalamis v. Smith
...commenced serving his sentence (Dec. 13, 1969), a total of 526 days which should be credited against the Westchester sentence (42 A.D.2d 998, 348 N.Y.S.2d 576). We affirmed on the Appellate Division memorandum (36 N.Y.2d 691, 366 N.Y.S.2d 411, 325 N.E.2d Kalamis claimed that the Middleton h......
-
Charos v. New York State Dept. of Correctional Services
...between August 23, 1973 and June 13, 1974. Special Term granted his petition in its entirety in reliance upon People ex rel. Middleton v. Zelker (42 A.D.2d 998, 348 N.Y.S.2d 576, affd. 36 N.Y.2d 691, 366 N.Y.S. 411, 325 N.E.2d 871) and Matter of Manning v. Vincent (45 A.D.2d 1009, 358 N.Y.S......