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 31⁄2 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
-2- 521756 

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 31⁄2 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
-3- 521756 

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
-4- 521756 

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