                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 31, 2014                     517009
________________________________

In the Matter of WILLIE BROWN,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

CRAIG D. APPLE, as Albany
   County Sheriff, et al.,
                    Respondents.
________________________________


Calendar Date:   June 9, 2014

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

                             __________


     Willie Brown, Marcy, appellant pro se.

      Thomas Marcelle, County Attorney, Albany (Adam G. Giangreco
of counsel), for Craig D. Apple, respondent.

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

                             __________


      Appeal from a judgment of the Supreme Court (Teresi, J.),
entered April 18, 2013 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent Albany County
Sheriff calculating petitioner's jail time credit.

      On August 31, 1989, petitioner was sentenced to 1 to 3
years in prison upon his conviction of assault in the second
degree. In September 1989, he was received into the custody of
the Department of Corrections and Community Supervision
(hereinafter DOCCS), which calculated his maximum expiration date
to be June 2, 1992. Petitioner was released to parole
supervision on June 4, 1990. On April 4, 1991, he was arrested
                              -2-                517009

on multiple charges and, on May 10, 1991, he was taken into the
custody of respondent Albany County Sheriff. The Division of
Parole did not declare petitioner delinquent or initiate
revocation proceedings following his arrest.

      Petitioner subsequently was convicted of rape in the first
degree, robbery in the second degree and two counts of sodomy in
the first degree and, on March 29, 1993, was sentenced to an
aggregate term of 32½ to 65 years in prison, which was reduced by
operation of law to 25 to 50 years. On May 17, 1993, petitioner
was received into DOCCS' custody to serve time for these
convictions. At that time, the Sheriff gave petitioner 742 days
of jail time credit for the time that he spent in local custody
from April 15, 1991 to April 18, 1991 and from May 10, 1991 to
May 16, 1993. This resulted in a maximum expiration date of May
4, 2041 and a parole eligibility date of May 4, 2016. Upon
inquiry by DOCCS many years later, the Sheriff recomputed
petitioner's jail time credit and did not include the time spent
in local custody from April 15, 1991 to April 18, 1991 and from
May 10, 1991 to June 2, 1992, totaling 394 days, because this
time had been counted toward the time that petitioner served in
connection with his 1989 conviction. Accordingly, the Sheriff
issued an amended jail time certificate giving petitioner 348
days of jail time credit. This resulted in a new maximum
expiration date of May 28, 2042 and a new parole eligibility date
of May 28, 2014. Petitioner then commenced this CPLR article 78
proceeding challenging the computation of his jail time credit.
Following service of respondents' answers, Supreme Court
dismissed the petition and petitioner now appeals.

      Penal Law § 70.30 (3) specifically provides that jail time
credit "shall be calculated from the date custody under the
charge commenced to the date the sentence commences and shall not
include any time that is credited against the term or maximum
term of any previously imposed sentence . . . to which the person
is subject." As petitioner was not declared delinquent as a
result of his arrest for the 1993 crimes, the time he spent in
local custody was credited toward the sentence then remaining on
his 1989 conviction until such sentence expired by its own terms
on June 2, 1992, the maximum expiration date. Pursuant to the
cited statute, petitioner was not entitled to have this time also
                              -3-                  517009

credited against his 1993 sentence (see Matter of Booker v
Laffin, 98 AD3d 1213, 1213-1214 [2012]; Matter of Murphy v Wells,
95 AD3d 1575, 1576 [2012], lv denied 19 NY3d 811 [2012]; People
ex rel. Moultrie v Yelich, 95 AD3d 1571, 1572-1573 [2012]).
Accordingly, we find no error in the computation of petitioner's
jail time credit. This Court's decision in Matter of Sparango v
New York State Bd. of Parole (132 AD2d 881 [1987], mod 71 NY2d
943 [1988]), relied upon by petitioner, is factually
distinguishable from the case at hand and does not compel a
contrary conclusion.

     Garry, J.P., Rose, Egan Jr., Devine and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
