                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   518171
________________________________

In the Matter of STEVEN
   SANTIAGO,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
A. GERMAIN, as Inmate
   Records Coordinator at Cape
   Vincent Correctional
   Facility, et al.,
                    Respondents.
________________________________


Calendar Date:   September 16, 2014

Before:   Peters, P.J., Lahtinen, McCarthy, Rose and Lynch, JJ.

                             __________


     Steven Santiago, Cape Vincent, appellant pro se.

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

                             __________


      Appeal from a judgment of the Supreme Court (Breslin, J.),
entered December 4, 2013 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 calculating the length of
petitioner's prison sentence.

      Supreme Court properly dismissed this CPLR article 78
proceeding, which petitioner commenced to challenge the
computation of his jail time credit. While on parole from a 2004
conviction, petitioner was arrested and charged with a new
offense in 2006. Petitioner remained in local custody while he
awaited resolution of the 2006 offense, but his parole was never
                              -2-                518171

formally revoked. The 2004 sentence accordingly reached its
maximum expiration date on March 13, 2007, when petitioner's
parole was discharged. Petitioner was thereafter convicted of
the charge underlying his 2006 arrest in June 2007, and was
transferred to a state prison shortly thereafter. He was
credited with 259 days of jail time toward his 2007 sentence, but
that credit was ultimately reduced to reflect only the period of
jail time from March 14, 2007 onward. Inasmuch as the jail time
prior to March 14, 2007 was credited toward the 2004 sentence,
the 2007 sentence was appropriately credited only with the jail
time served thereafter (see Penal Law § 70.30 [3]; Matter of
Murphy v Wells, 95 AD3d 1575, 1576 [2012], lv denied 19 NY3d 811
[2012]).

      Petitioner was released to postrelease supervision in July
2008 and, in August 2008, found himself back in local custody.
He was restored to postrelease supervision in November 2008.1 He
remained in jail until February 19, 2010, when he was sentenced
to a new prison term as the result of the August 2008 charges.
Because petitioner's prior period of postrelease supervision had
not concluded, only the jail time served from February 19, 2010
onward could be credited toward the 2010 sentence (see e.g.
People ex rel. Moultrie v Yelich, 95 AD3d 1571, 1572-1573
[2012]).

      Petitioner's remaining arguments have been considered and
found to lack merit.

      Peters, P.J., Lahtinen, McCarthy, Rose and Lynch, JJ.,
concur.




    1
        Subsequent to Supreme Court's decision, officials
realized that the amended jail time certificate had failed to
credit petitioner for much of the jail time that he served from
August 2008 to November 2008 and, accordingly, issued a second
amended jail time certificate correcting that error.
                        -3-                  518171

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
