Peterson v. New York State Dept. of Correctional Services

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Before TITONE; TITONE
• Citation: 473 N.Y.S.2d 473,100 A.D.2d 73
• Decision Date: 12 March 1984
• Parties: In the Matter of Larry PETERSON, Appellant, v. The NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.

Page 473

473 N.Y.S.2d 473 100 A.D.2d 73 In the Matter of Larry PETERSON, Appellant,
v.
The NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Respondent. Supreme Court, Appellate Division,
Second Department. March 12, 1984.

Page 474

William D. Gibney and David C. Leven, New York City, for appellant.

Robert Abrams, Atty. Gen., New York City (Melvyn Leventhal, Gerald Ryan and Burton Herman, Asst. Attys. Gen., New York City, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, O'CONNOR and BROWN, JJ.

TITONE, Justice Presiding.

The sole issue on this appeal is whether petitioner, Larry Peterson, presently serving concurrent sentences for robbery in the second degree and attempted possession of a weapon in the third degree, is entitled to mandatory jail time credit, by virtue of subdivision 3 of section 70.30 of the Penal Law, ¹ for 191 days spent in Federal custody on an [100 A.D.2d 74] unrelated charge. We conclude that petitioner may obtain credit only for the period after a detainer warrant or other instrument placing him in constructive custody in connection with the State charges was filed and up to and until his Federal sentence commenced, provided that the detainer was the sole cause of petitioner's inability to obtain release from confinement. Because the record is silent as to when such constructive custody commenced, if at all, we must remit the matter for additional findings.

On May 31, 1975, petitioner was arrested on a robbery charge in Bronx County and

Page 475

was released on bail. He was thereafter arrested on a weapons charge in Queens County and again released on bail. On January 23, 1976, petitioner was arrested a third time, on Federal bank robbery charges, and was held in custody at a Federal correctional facility in Manhattan. As a result of the Federal charges, petitioner alleges that bail in the Queens case was revoked at an unspecified subsequent date. In any event, petitioner was detained in Federal custody from the date of his arrest. Bail was either not set or petitioner was unable to meet it.

The Federal charges were disposed of first. On June 18, 1976, petitioner was sentenced in the United States District Court for the Eastern District of New York to 10 years imprisonment. He was then sentenced in Queens, on June 25, 1976, to a term of two to four years imprisonment and in the Bronx, on December 10, 1976, to five to ten years imprisonment, both sentences to run concurrently with the Federal sentence. In the interim between the Queens and Bronx [100 A.D.2d 75] sentencing proceedings, petitioner had been transferred from the Federal correctional facility in Manhattan to the Federal Correctional Institution at Ashland, Kentucky, arriving there on August 3, 1976. Following parole from the Federal sentence, petitioner began serving the State sentences on January 22, 1982.

In this article 78 proceeding, petitioner seeks jail time credit against his State sentences from January 23, 1976, the date he was taken into Federal custody, until he arrived at the Federal Correctional Institution at Ashland, Kentucky. It is conceded that jail time credit was received on the Federal sentence in accordance with applicable law (U.S.Code, tit. 18, § 3568). Special Term denied all relief. We reverse and remit for a hearing to determine the amount of credit, if any, that should be awarded, to be calculated in accordance with the principles set forth below.

The threshold question is whether the provisions of subdivision 3 of section 70.30 of the Penal Law are applicable to jail time spent in the custody of Federal authorities. Neither party has supplied us with any cases on the subject and we have been unable to find any (but compare Matter of Benjamin v. Meyer, 48 Misc.2d 998, 1001, 266 N.Y.S.2d 485 [provisions of section 2193 of the former Penal Law held inapplicable to time spent in Federal detention upon Federal charges prior to extradition] with People v. Nagler, 21 A.D.2d 490, 251 N.Y.S.2d 107 [extradition jail time on same charge credited under section 2193 of the former Penal Law]; see, also, Right to Credit for Time Spent in Custody Prior to Trial or Sentence, Ann., 77 A.L.R.3d 182, § 16c). Analysis of the legislative history and policy behind subdivision 3 of section 70.30 of the Penal Law as well as the construction given the parallel provisions of Federal law is, however, illuminating.

In Matter of Kalamis v. Smith, 42 N.Y.2d 191, 197, 397 N.Y.S.2d 690, 366 N.E.2d 781, the Court of Appeals traced the development of the concept of jail time credit explaining that 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 [100 A.D.2d 76] 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)."

A similar statutory scheme exists in the Federal system (U.S.Code, tit. 18, § 3568) ² which evinces an identical policy (see Gilbert v. United States, 299 F.Supp. 689, containing a lengthy discussion of its legislative

Page 476

history). In such circumstances, we may look to Federal cases for guidance (McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 72, p 144; see Matter of Sea Crest Constr. Corp. v. Stubing, 82 A.D.2d 546, 548-549, 442 N.Y.S.2d 130).

In interpreting the Federal statute, the cases have dealt with the converse of the matter now before us, i.e., where an individual is detained in State custody while Federal charges are also pending and Federal jail time credit is sought. Such credit must be given under section 3568 of title 18 of the United States Code "only if the defendant proves that his state confinement 'was exclusively the product of such action by federal law-enforcement officials as to justify treating the State jail as the practical equivalent of a federal one' " (United States v. Shillingford, 586 F.2d 372, 375 [5th Cir.1978], quoting Ballard v. Blackwell, 449 F.2d 868, 869 [5th Cir.1971] ). Thus, the credit must be given if a State defendant is denied bail solely as a result of a Federal detainer, i.e., if the Federal detainer otherwise prevents release from State custody (United States v. Shillingford, supra, p. 375, n; Davis v. Attorney General of the United States, 425 F.2d 238 [5th Cir.1970]; Brown v. United States, 311 F.Supp. 325). "Or, to state it affirmatively, if absent the Federal detainer and under available state procedures [a defendant] could have been released from...