Smith v. Annucci
| Decision Date | 28 June 2018 |
| Docket Number | 525499 |
| Citation | 162 A.D.3d 1430,80 N.Y.S.3d 503 |
| Parties | In the Matter of Thomas SMITH, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
162 A.D.3d 1430
80 N.Y.S.3d 503
In the Matter of Thomas SMITH, Appellant,
v.
Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
525499
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: May 8, 2018
Decided and Entered: June 28, 2018
Thomas Smith, Malone, appellant pro se.
Barbara D. Underwood, Attorney General, Albany (Brian D. Ginsberg of counsel), for respondents.
Before: Lynch, J.P., Devine, Clark, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Collins, J.), entered September 5,
2017 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Corrections and Community Supervision, among other things, calculating petitioner's jail time credits.
In 2010, petitioner was convicted of robbery in the third degree and sentenced as a second felony offender to a prison term of 2½ to 5 years, and he began serving his sentence (hereinafter the 2010 sentence). During his release to parole supervision in 2013, he was returned to the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS) to complete his 2010 sentence after violating the conditions of his release and was later arrested for committing additional robbery-related crimes earlier that year while on release. On October 29, 2013, petitioner was transferred to the New York City Department of Correction (hereinafter NYCDOC) in connection with the 2013 robbery-related crimes and, in 2014, he was convicted of those crimes and sentenced to concurrent prison terms of 3½ to 7 years and 2 to 4 years (hereinafter the 2014 sentence). Petitioner was returned to the custody of DOCCS on July 2, 2014. After he served the undischarged portion of his 2010 sentence, he began serving his 2014 sentence, which he is currently serving.
In 2015, petitioner commenced a CPLR article 78 proceeding challenging DOCCS's calculation of his sentences and the consecutive treatment of his 2010 and 2014 sentences. This Court upheld the dismissal of that petition by Supreme Court (Hard, J.), holding, among other things, that the 2014 sentence was required to run consecutively to the undischarged 2010 sentence, by operation of law (see Matter of Smith v. Stanford, 142 A.D.3d 1208, 1209–1210, 37 N.Y.S.3d 357 [2016], citing Penal Law § 70.25[2–a] ). After that first proceeding had been...
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...his 1995 sentence, it cannot also be used as a credit towards his 2000 sentence (see Penal Law § 70.30[3] ; Matter of Smith v. Annucci, 162 A.D.3d 1430, 1431–1432, 80 N.Y.S.3d 503 [2018], lv denied 32 N.Y.3d 909, 2018 WL 6052682 [2018] ; Matter of Phillips v. Annucci, 161 A.D.3d at 1440, 77......
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