                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   521756
________________________________

In the Matter of FEDERICO
   ORTIZ,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   September 7, 2016

Before:   Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


      Robert S. Dean, Center for Appellate Litigation, New York
City (Mark W. Zeno of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the Supreme Court (Zwack, J.),
entered September 4, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to compel the Department of Corrections and Community
Supervision to credit petitioner for jail time served on a
previously imposed sentence.

      On November 8, 2000, petitioner was sentenced to 3½ years
in prison after being convicted of attempted robbery. Although
required by statute, the sentencing court failed to impose a
period of postrelease supervision (hereinafter PRS) (see Penal
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Law § 70.45). Petitioner began serving that sentence on November
27, 2000, at which time the Department of Corrections and
Community Supervision (hereinafter DOCCS) assessed petitioner a
five-year term of PRS and credited him with 106 days of jail time
already served. On August 8, 2003, petitioner was conditionally
released on PRS but was declared delinquent soon thereafter. In
January 2004, he was returned to the custody of DOCCS on a PRS
violation and credited with 147 days of jail time served from
August 26, 2003 to January 9, 2004. On May 11, 2004, petitioner
was again conditionally released on PRS but declared delinquent
on June 25, 2006 after committing attempted murder in the second
degree. Upon being convicted of that crime, petitioner was
sentenced on June 14, 2007 to a prison term of 13 years followed
by five years of PRS and he was received into custody by DOCCS,
at which time he was credited with 394 days of jail time served
from June 26, 2006 to July 24, 2007. Because the 2007 sentence
was deemed to have run concurrently with the undischarged 2000
sentence (see Penal Law § 70.25 [1] [a]), DOCCS credited
petitioner's 13-year prison sentence with three years and two
days of jail time served, which was the amount of time that
petitioner had served on the 2000 sentence and the PRS violations
(see Penal Law § 70.30 [1] [a]).

      In 2011, after the Court of Appeals held that DOCCS lacked
the authority to impose a statutorily-required period of PRS (see
Matter of Garner v New York State Dept. of Correctional Servs.,
10 NY3d 358, 362-363 [2008]), petitioner was resentenced for his
2000 conviction of attempted robbery and received the same
sentence of 3½ years in prison without any term of PRS (see Penal
Law § 70.85; Correction Law § 601-d). As a result, the
sentencing court nullified the PRS assessed by DOCCS in November
2000 and expunged petitioner's PRS violations, resulting in a
maximum expiration date of petitioner's 2000 sentence as February
10, 2004 and a recalculation of his 2007 sentence without the
benefit of any time that he had served in custody for the earlier
2000 sentence. Petitioner thereafter requested that his 2007
sentence be credited for such time, and, after receiving no
response from DOCCS, petitioner commenced this proceeding seeking
to compel DOCCS to recalculate and credit his 2007 sentence with
the time served on the 2000 sentence. Supreme Court dismissed
the petition, finding no authority to credit time spent in
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custody as a result of a prior conviction that did not culminate
in a dismissal or an acquittal, and petitioner now appeals.

      We affirm. Penal Law § 70.30 (3) provides, in relevant
part, 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 that
credit "shall not include any time that is credited against the
term or maximum term of any previously imposed sentence or period
of [PRS]." Here, upon being resentenced in 2011, without any
term of PRS, for his 2000 attempted robbery conviction,
petitioner's maximum expiration date for his 2000 sentence was
February 10, 2004. Thus, because the 2000 sentence and 2007
sentence could not then have run concurrently, petitioner is not
entitled to receive any jail time credit served for the 2000
sentence under Penal Law § 70.30 (1) (a). Nor is any of the jail
time for which petitioner seeks credit the result of the same
attempted murder charge that culminated in the 2007 sentence (see
Penal Law § 70.30 [3]; Matter of Hurley v Fox, 133 AD3d 997, 998
[2015]; Matter of Henderson v Fischer, 110 AD3d 1131, 1132
[2013], lv denied 22 NY3d 857 [2013]). Moreover, "nullification
of the PRS does not constitute 'a dismissal or an acquittal' of
petitioner's 2000 charge[] within the meaning of Penal Law
§ 70.30 (3)" (Matter of Henderson v Fischer, 110 AD3d at 1132;
see generally Matter of Jeffrey v Ward, 44 NY2d 812, 814 [1978]).

      Furthermore, we are unpersuaded by petitioner's contention
that removal of jail time credit on the 2007 sentence for time
served on the 2000 sentence constituted multiple punishments for
the same offense and therefore violated principles of double
jeopardy (see US Const 5th Amend; CPL 40.20 [1]; People v
Brinson, 21 NY3d 490, 494 [2013]). In this context, "this basic
constitutional guarantee is violated when punishment already
exacted for an offense is not fully 'credited' in imposing
sentence upon a new conviction for the same offense" (North
Carolina v Pearce, 395 US 711, 718 [1969]; see Penal Law § 70.30
[5]). The removal of jail time credit for the time that
petitioner served on the 2000 sentence cannot constitute another
punishment for the 2007 sentence because the sentences did not
arise from the same offense or charges. Accordingly, we find
that the calculation of petitioner's jail time credit was proper
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under the circumstances of this case.

     McCarthy, Garry, Rose and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
