### Melendez v Martuscello 2024 NY Slip Op 32475(U) July 22, 2024 Supreme Court, New York County Docket Number: Index No. 450607/2024 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 34 INDEX NO. 450607/2024 RECEIVED NYSCEF: 07/22/2024 

### SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY PRESENT: HON. LYLE E. FRANK Justice

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FABIAN MELENDEZ

- V - DANIEL F. MARTUSCELLO, Petitioner,

Respondent.

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INDEX NO.
MOTION DATE 11M
450607/2024 02/21/2024, 04/08/2024 MOTION SEQ. NO.
__ 0_0_1_0_0_2
__ DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 were read on this motion to/for ARTICLE 78 (BODY OR OFFICER) The following e-filed documents, listed by NYSCEF document number (Motion 002) 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,28,29,30,31,32 were read on this motion to/for DISMISS 

### Upon the foregoing documents, the petition is denied, the motion to dismiss is granted and the cross motion is denied. The instant petition arises out ofpetitioner's allegation that respondents incorrectly calculated petitioner's earned time credit and now seeks a writ of mandamus compelling respondents to recalculate petitioner's earned time credit. The parties agree that the sole substantive issue before the Court is whether petitioner's accrual ofretroactive earned time credit shouldhave commenced as ofhis adjusted maximum expiration date ofApril 22, 2019, rather than his release date ofFebruary 9, 2021. Background 

### Petitioner Fabian Melendez is currently serving a period ofpost-release supervision under Kings County Indictment Number 5932/14. Petitioner contends that pursuant to the "Less Is More Act", Penal Law§ 70.40(4), respondents incorrectly calculated earned time credit toward his postrelease supervision.

450607/2024 Motion No. 001 002

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Petitionerwas serving two consecutive 3-year sentences, when a stay was issued for his Staten Island sentence on February 5, 2021. Petitionerwas subsequentlyreleased from prison on February 9, 2021, after a recalculation ofthe maximum expiration date ofhis prison term, under the remaining Kings County sentence, was determined to be April 22, 2019. Petitioner contends that even though he remained incarcerated he is entitled to the earned time credit from the date of the expiration ofhis prison term. However, when the Act took effect on March 1, 2022, respondents awardedpetitioner retroactive earned time credit for every 30-dayperiod ofpostrelease supervision without a violation beginning on February 9, 2021-the date on which he was released from prison, through March 1, 2022. Penal Law§ 70.40(4)(a), (b), (c) states in pertinent part: "
...Earned time credits. (a) Any person subject to community supervision shall be awarded earned time credits. The calculation ofearned time credit periods shall begin on the releasee's first day ofcommunity supervision and shall be awarded after each completed thirty dayperiod in compliance with the terms oftheir community supervision. Any such awarded earned time credits shall be applied against such person's unserved portion ofthe maximum term, aggregate maximum term orperiod ofpost-release supervision for any current sentence. Persons subject to a sentence with a maximum term oflifeimprisonment or lifetime supervision shall notbe eligible to receive earned time credits under this section." (b) After a person has begun a period ofcommunity supervision pursuant to this section and section 70.45 ofthis article, such period ofcommunity supervision shall be reduced bythirty days for every thirty days that such person does not violate a condition ofand remains in compliance with all conditions ofhis orher community supervision, provided, however, that the person is not subject to any sentence with a maximum term oflifeimprisonment or lifetime supervision. When a person is subject to more than one period ofcommunity supervision, the reduction authorized in this subject to more than one period ofcommunity supervision, the reduction authorized in this subdivision shall be applied to every

450607/2024 Motion No. 001 002

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### [* 2]NYSCEF DOC. NO. 34 INDEX NO. 450607/2024 RECEIVED NYSCEF: 07/22/2024

such period ofparole or conditional release to which the person is subject." (c) Retroactive earned time credits shall be awarded for eligible persons subject to community supervision at the time this legislation becomes effective, provided however, that the maximum allowable retroactive earned time credit awarded shall not exceed a period oftwo years. Retroactive earned time credits shall notbe awarded to any releasee serving a term of reincarceration for a sustained parole violation at the time ofthe effective date ofthe chapter oflaws oftwo thousand twenty-one that added this subdivision until the releasee is returned to community supervision. Persons subject to a sentence with a maximum term oflife imprisonment or lifetime supervision shall notbe eligible to receive retroactive earned time credits under this section." Penal Law§ 70.40(4)(a), (b), (c). Discussion An Article 78 petition maybebrought to seek the remedy ofmandamus, that is, to compel an agency "to perform a duty enjoined upon itby law" (CPLR 7803[1]). Mandamus applies only to compel a ministerial duty and not those that involve the exercise of judgment or discretion (Brusco v Braun, 84 NY2d 674, 679 [1994]). Thus, to be entitled to mandamus, petitionermust show "a clear legal right to the reliefdemanded" and "a corresponding nondiscretionary duty on the part ofthe agency to grant thatrelief' (Matter of Scherbyn v Wayne-FingerLakesBd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]). Here, the Court finds that a writ ofmandamus is inappropriate in this proceeding. Preliminarily, the Court does not deem the reliefsought to be a ministerial function of respondents as the petition is requesting thatrespondents exercise discretion in its calculation of petitioner's earned time credit, contrary to its assertions that the awarding ofearned time credit is not discretionary.

450607/2024 Motion No. 001 002 Page 3 of4

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Nonetheless, the Court agrees with respondents' interpretation and application ofthe Less is More Actto require thatthe individual seeking the creditbe under community supervision and not incarcerated. Petitionerhas notmet its burdento establish, thatunder any interpretation of the Act, that an individual that is incarcerated andnotundercommunity supervision wouldbe entitledto an accrual ofearnedtime credit. Theplainlanguage ofthe Act does not support such
a conclusion. The Court finds that the record is clear andthatrespondents' calculation of petitioner's earnedtime credit from the time he was released from custodyto be rational and consistent withthe law. Accordingly, itis hereby ADJUDGED that the petitionis dismissed.

7/22/2024

DATE CHECK ONE:
APPLICATION: CHECKIF APPROPRIATE:

450607/2024 Motion No. 001 002 CASE DISPOSED GRANTED 

# 0 DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

4 of 4 LYLE E. FRANK, J.S.C.

# ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

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