People v. Schiraldi

• Decision Date: 20 December 1974
• Citation: 362 N.Y.S.2d 378,80 Misc.2d 103
• Parties: The PEOPLE of the State of New York v. Dominick SCHIRALDI, Defendant.
• Court: New York Supreme Court

Page 378

362 N.Y.S.2d 378

80 Misc.2d 103

The PEOPLE of the State of New York v. Dominick SCHIRALDI, Defendant.

Supreme Court, Trial Term, New York County, Part 30.

Dec. 20, 1974.

Adrian Burke, Corp. Counsel of City of New York, New York City, by Barry I. Berger, Brooklyn, of counsel, for the Department of Correction.

Dominick Schiraldi pro se.

GEORGE F. ROBERTS, Judge:

On August 14, 1973, the defendant was sentenced in New York Supreme Court to an indeterminate term of 0--7 years on indictment number 6272/71 to be served concurrently with the sentence imposed in indictment number 6330/71 and concurrently with a sentence imposed by the United States District Court on March 23, 1973 of 0--3 years. On May 9, 1974, the defendant was transferred to Greenhaven Correctional Facility from Danbury Federal Correctional Facility.

The defendant, pro se, claims that he is entitled to jail time credit for the period from August 14, 1973 to May 8, 1974, this being the date in which he received his state sentences until the date of his transfer from federal prison. The Department of Correction, however, asserts that under the Penal Law (sections 70.25 and 70.30(1)), a sentence to a state institution cannot run concurrently with a previously imposed sentence to a federal facility. In this contention, the Department of Correction is correct (People v. Schatz, 45 A.D.2d 853, 358 N.Y.S.2d 506 (2d Dept., 1974)). A federal court is similarly precluded from imposing a sentence which runs concurrently with a state sentence, except where the Attorney General of the United States designates a state institution as the place of confinement (18 U.S.C.A. §§ 3568, 4082). See Hash v. Henderson, 262 F.Supp. 1016 (E.D.Ark., 1967), aff'd 385 F.2d 475 (8th Cir., 1967).

Consequently, the sentence imposed upon defendant on August 14, 1973 in New York Supreme Court was illegal. Nonetheless, the Warden had no right to refuse the defendant jail credit, as directed by the court. Prison officials are conclusively bound by the terms of the commitment papers, and they cannot add or detract therefrom (People ex rel. Jackson v. Weaver, 279 App.Div. 88, 108 N.Y.S.2d 653 (3d Dept., 1951); matter of Donohue v. Brown, 3 Misc.2d 969, 153 N.Y.S.2d 336 (Sup.Ct., Westchester County, 1956); People ex rel. Coates v. Martin, 8 A.D.2d 688, 184 N.Y.S.2d 443 (4th Dept., 1959); and People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99 (Sup.Ct., Westchester County, 1971)). The error in the sentence must be corrected by appropriate judicial proceedings in the sentencing court (People ex rel. Coates v. Martin, supra; see also Matter of Donohue v. Brown, supra).

If the Department of Correction has unlawfully modified the defendant's sentence, the proper remedy available to the defendant is a proceeding pursuant to Article 78 of the CPLR or, if the defendant would otherwise be entitled to release were it not for the error of the prison authorities, a habeas corpus proceeding at the county of detention (Matter of Freeman v. N.Y.S. Correction Dept., 20 A.D.2d 825, 247 N.Y.S.2d 415 (3d Dept., 1964); People v. Nagler, 21 A.D.2d 490, 251 N.Y.S.2d 107 (1st Dept., 1964); People ex rel. Henderson v. Casscles, supra; and People v. Simmons, 40 A.D.2d 563, 334 N.Y.S.2d 117 (2d Dept., 1972)). However, once the court obtains jurisdiction of the parties, it need not dismiss the action merely because an inappropriate proceeding was commenced, provided the court can grant full relief (People ex rel. Henderson v. Casscles, supra). Where the facts are not disputed, the motion will be treated as an application for...