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 

NEW YORK COUNTY 

PRESENT: HON. LYLE E. FRANK 

Justice 

---------------------------------------------------------------------------------X 

FABIAN MELENDEZ 

- V -

DANIEL F. MARTUSCELLO, 

Petitioner, 

Respondent. 

---------------------------------------------------------------------------------X 

PART 

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 of petitioner'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 should have commenced as of his adjusted maximum 

expiration date of April 22, 2019, rather than his release date of February 9, 2021. 

Background 

Petitioner Fabian Melendez is currently serving a period of post-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 post release supervision. 

450607/2024 Motion No. 001 002 

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NYSCEF DOC. NO. 34 

INDEX NO. 450607/2024 

RECEIVED NYSCEF: 07/22/2024 

Petitioner was serving two consecutive 3-year sentences, when a stay was issued for his 

Staten Island sentence on February 5, 2021. Petitioner was subsequently released from prison on 

February 9, 2021, after a recalculation of the maximum expiration date of his 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 of his prison term. 

However, when the Act took effect on March 1, 2022, respondents awarded petitioner 

retroactive earned time credit for every 30-day period of post release 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 

of earned time credit periods shall begin on the releasee's first day 

of community supervision and shall be awarded after each 

completed thirty day period in compliance with the terms of their 

community supervision. Any such awarded earned time credits 

shall be applied against such person's unserved portion of the 

maximum term, aggregate maximum term or period of post-release 

supervision for any current sentence. Persons subject to a sentence 

with a maximum term oflife imprisonment or lifetime supervision 

shall not be eligible to receive earned time credits under this 

section." 

(b) After a person has begun a period of community supervision 

pursuant to this section and section 70.45 of this article, such 

period of community supervision shall be reduced by thirty days 

for every thirty days that such person does not violate a condition 

of and remains in compliance with all conditions of his or her 

community supervision, provided, however, that the person is not 

subject to any sentence with a maximum term oflife imprisonment 

or lifetime supervision. When a person is subject to more than one 

period of community supervision, the reduction authorized in this 

subject to more than one period of community supervision, the 

reduction authorized in this subdivision shall be applied to every 

450607/2024 Motion No. 001 002 

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NYSCEF DOC. NO. 34 

INDEX NO. 450607/2024 

RECEIVED NYSCEF: 07/22/2024 

such period of parole 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 of two years. Retroactive earned time credits 

shall not be awarded to any releasee serving a term of 

reincarceration for a sustained parole violation at the time of the 

effective date of the chapter of laws of two thousand twenty-one 

that added this subdivision until the releasee is returned to 

community supervision. Persons subject to a sentence with a 

maximum term of life imprisonment or lifetime supervision shall 

not be eligible to receive retroactive earned time credits under this 

section." 

Penal Law§ 70.40(4)(a), (b), (c). 

Discussion 

An Article 78 petition may be brought to seek the remedy of mandamus, that is, to 

compel an agency "to perform a duty enjoined upon it by 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, 

petitioner must show "a clear legal right to the relief demanded" and "a corresponding 

nondiscretionary duty on the part of the agency to grant that relief' (Matter of Scherbyn v 

Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757 [1991]). 

Here, the Court finds that a writ of mandamus is inappropriate in this proceeding. 

Preliminarily, the Court does not deem the relief sought to be a ministerial function of 

respondents as the petition is requesting that respondents exercise discretion in its calculation of 

petitioner's earned time credit, contrary to its assertions that the awarding of earned time credit is 

not discretionary. 

450607/2024 Motion No. 001 002 Page 3 of 4 

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NYSCEF DOC. NO. 34 

INDEX NO. 450607/2024 

RECEIVED NYSCEF: 07/22/2024 

Nonetheless, the Court agrees with respondents' interpretation and application of the Less 

is More Act to require that the individual seeking the credit be under community supervision and 

not incarcerated. Petitioner has not met its burden to establish, that under any interpretation of 

the Act, that an individual that is incarcerated and not under community supervision would be 

entitled to an accrual of earned time credit. The plain language of the Act does not support such 

a conclusion. The Court finds that the record is clear and that respondents' calculation of 

petitioner's earned time credit from the time he was released from custody to be rational and 

consistent with the law. Accordingly, it is hereby 

ADJUDGED that the petition is dismissed. 

7/22/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF 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 

□ OTHER 

□ REFERENCE 

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