                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 13, 2015                   520059
________________________________

In the Matter of FRANK F.
   RUSSELL,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

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


Calendar Date:   June 8, 2015

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

                             __________


     Frank F. Russell, Syracuse, appellant pro se.

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

                             __________


      Appeal from a judgment of the Supreme Court (Collins, J.),
entered September 26, 2014 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 petitioner's
jail time credit.

      In 1992, 1995 and 2003, petitioner was convicted,
respectively, of the crimes of attempted assault in the second
degree, criminal possession of a controlled substance in the
third degree and attempted criminal possession of a controlled
substance in the fifth degree. The indeterminate sentences for
these crimes, ranging from 1½ to 3 years to 4½ to 9 years in
prison, ran consecutively and, after they were imposed,
                               -2-                520059

petitioner was periodically released to parole supervision and
later declared delinquent. He was finally restored to parole
supervision on January 4, 2006, at which time the maximum
expiration date of his 1992, 1995 and 2003 sentences was
September 28, 2008.

      While on parole, petitioner was convicted of criminal
possession of a controlled substance in the third degree and
criminal sale of a controlled substance in the third degree and,
on March 9, 2007, he was sentenced as a second felony offender to
concurrent prison terms of nine years, to be followed by 3½ years
of postrelease supervision, which sentences were to run
consecutively to his 1992, 1995 and 2003 sentences.1 He was
declared delinquent and his parole was revoked as of March 9,
2007. Petitioner was received into the custody of the Department
of Corrections and Community Supervision (hereinafter DOCCS) on
March 14, 2007. At such time, he was granted 374 days of jail
time credit for the period that he was in local custody from
March 7, 2006 to March 15, 2007, giving him a maximum expiration
date for his 2007 crimes of March 6, 2015. After it was
discovered that the time he spent in local custody from March 7,
2006 to March 9, 2007 had been credited toward his 1992, 1993 and
2003 sentences, the credit was reduced to seven days for the
period March 9, 2007 to March 15, 2007, giving him a maximum
expiration date for his 2007 crimes of March 8, 2016. Petitioner
requested DOCCS to recalculate his jail time credit, but it
concluded that his jail time credit was properly reduced. He
commenced this CPLR article 78 proceeding as a result and,
following joinder of issue, Supreme Court dismissed the petition.
This appeal ensued.

      We affirm. Pursuant to Penal Law § 70.30 (3), jail time
credit shall not be applied against a subsequent sentence when it
has already been applied toward time served on a previous
sentence (see Matter of Santiago v Germain, 121 AD3d 1479, 1480


     1
        That portion of the 2007 sentence imposing 3½ years of
postrelease supervision was reduced on appeal to three years
(People v Russell, 83 AD3d 1463 [2011], lv denied 17 NY3d 800
[2011]).
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[2014]; Matter of Blake v Dennision, 57 AD3d 1137, 1138 [2008],
lv denied 12 NY3d 710 [2009]). Here, the record reveals that
petitioner's 1992, 1995 and 2003 indeterminate sentences ran
uninterrupted from the time that he was restored to parole
supervision on January 4, 2006 until he was sentenced on March 9,
2007 for his 2007 crimes. It further discloses that the time he
spent in local custody from March 7, 2006 until March 9, 2007 was
credited toward his 1992, 1995 and 2003 sentences. In view of
this, petitioner was not entitled to have such time also credited
against his 2007 sentences (see People ex rel. Moultrie v Yelich,
95 AD3d 1571, 1572-1573 [2012]). Petitioner's reliance on Matter
of Sparago v New York State Bd. of Parole (132 AD2d 881 [1987],
mod 71 NY2d 943 [1988]) does not compel a contrary conclusion for
here, unlike Sparago, petitioner's release on the indeterminate
sentences was revoked by operation of law (see Executive Law
§ 259-i [3] [d] [iii]). Therefore, Supreme Court properly
dismissed the petition.

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



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
