Loya v. Annucci

214 A.D.3d 1105

185 N.Y.S.3d 371

In the Matter of Robert J. LOYA, Appellant,

v.Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

535001

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 22, 2023

Decided and Entered: March 9, 2023

Robert J. Loya, Saratoga Springs, appellant pro se.

Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Reynolds Fitzgerald and Ceresia, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from a corrected judgment of the Supreme Court (Patrick McGrath, J.), entered December 29, 2021 in Albany County, which, among other things, 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 sentence.

In January 2018, petitioner was sentenced as a second felony offender to 1½ years in prison followed by three years of postrelease supervision. In October 2018, petitioner was conditionally released on postrelease supervision with the remaining portion of his determinate sentence held in abeyance. He was subsequently declared delinquent on December 30, 2018. On January 27, 2019, petitioner was arrested on a forgery charge and held in Saratoga County jail. Based upon his parole violation, petitioner was returned to the custody of the Department of Corrections and Community Supervision (hereinafter DOCCS) for a 90–day time assessment. At the expiration of that time assessment on June 14, 2019, petitioner was re-released from the custody of DOCCS to continue the postrelease supervision segment of his 2018 sentence and was transferred to the custody of the Saratoga County jail on the pending forgery charge.

On August 12, 2019, petitioner was sentenced to a prison term of 2½ to 5 years – to be served consecutively to the parole portion of the 2018 sentence – following his conviction of forgery in the second degree.

On the same day, petitioner was declared delinquent in connection with his 2018 postrelease supervision. Ultimately, and as is relevant to this appeal, the Saratoga County Sheriff's office issued an amended jail time certificate crediting 68 days toward petitioner's 2019 sentence. DOCCS applied the 68–day jail time credit and calculated petitioner's 2019 conditional release date as October 5, 2022 and his maximum expiration date as June 6, 2024.

Petitioner thereafter commenced this CPLR article 78 proceeding against respondent alone, challenging, among other things, the accuracy of the Saratoga County Sheriff's amended jail time certificate and recalculation of his 2019 sentence. Following joinder of issue, Supreme Court dismissed the petition. Petitioner subsequently moved for reargument, alleging that the court misapprehended relevant facts, as the court's decision referenced dates that were unrelated to petitioner's case. By order entered December 29, 2021, the court addressed the merits and denied the motion to reargue and, pursuant to CPLR 5019(a), issued a corrected judgment rectifying certain clerical mistakes and, again, dismissing the petition. Petitioner appeals.

Although DOCCS was bound by the amended jail time certificate in calculating petitioner's 2019 maximum expiration and conditional release dates (see Matter of Peterkin v. Annucci, 185 A.D.3d 1337, 1338, 128 N.Y.S.3d 320 [3d Dept. 2020] ; Matter of Olutosin v. Annucci, 174 A.D.3d 1262, 1264, 107 N.Y.S.3d 177 [3d Dept. 2019], lv. denied 34 N.Y.3d 908, 2020 WL 205882 [2020] ), petitioner is primarily arguing – in both the petition and on appeal – that the calculation of the jail time credits was improper and seeks an additional credit toward the 2019 sentence. Respondent notes on appeal that, because petitioner is challenging the accuracy of the credit reflected in the amended jail time certificate, the Sheriff, the party responsible for calculating and issuing that jail time certificate (see Correction Law §...