                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 12, 2015                   520331
________________________________

In the Matter of JONATHAN
   HURLEY,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
RHONDA FOX, as Inmate Records
   Coordinator, Woodbourne
   Correctional Facility,
   et al.,
                    Respondents.
________________________________


Calendar Date:   September 22, 2015

Before:   Garry, J.P., Egan Jr., Devine and Clark, JJ.

                             __________


     Jonathan Hurley, Woodbourne, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for Rhonda Fox, respondent.

      Zachary W. Carter, Corporation Counsel, New York City
(Drake Colley of counsel), for New York City Department of
Corrections, respondent.

                             __________


      Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered December 3, 2014 in Sullivan 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 calculating his jail time
credit.

      In 1995, petitioner was sentenced to a prison term of 4 to
12 years following his conviction of attempted murder in the
                              -2-                520331

second degree. After being received into the custody of the
Department of Corrections and Community Supervision, 641 days of
jail time credit was certified for the period that petitioner was
in local custody from April 9, 1994 to January 9, 1996 and
credited toward his 1995 sentence. Thereafter, while on
conditional release to parole supervision in 2002, petitioner was
linked to various felonies committed in 1993 and arrested.
Following his conviction of multiple felonies stemming from the
1993 incidents, petitioner was sentenced in 2004 to an aggregate
prison term of 13 to 39 years. Petitioner commenced this CPLR
article 78 proceeding challenging, as is relevant to this appeal,
the Department's sentencing computation that failed to apply 641
days of jail time credit toward his 2004 sentence for time spent
in local custody in 1994 through 1996 while awaiting his 1995
sentencing. Supreme Court dismissed the petition and this appeal
ensued.

      We affirm. Penal Law § 70.30 (3) provides that a person
shall receive jail time credit for time spent "in custody prior
to the commencement of such sentence as a result of the charge
that culminated in the sentence" and shall be calculated "from
the date custody under the charge commenced to the date the
sentence commences." Here, petitioner was not in custody from
1994 through 1996 as a result of the charges that culminated in
his 2004 sentence, as he was not charged with those crimes until
2002. As such, he is not entitled to credit for that period
toward the 2004 sentence (see Matter of Henderson v Fischer, 110
AD3d 1131, 1132 [2013], lv denied 22 NY3d 857 [2013]).
Furthermore, we are unpersuaded by petitioner's assertion that
Matter of Sparago v New York State Bd. of Parole (132 AD2d 881
[1987], mod 71 NY2d 943 [1988]) compels a contrary conclusion, as
that case is factually distinguishable from the instant case.
Accordingly, Supreme Court properly dismissed the petition.

     Garry, J.P., Egan Jr., Devine and Clark, JJ., concur.
                        -3-                  520331

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
