Matter of Canadav.McGinnis

Appellate Division of the Supreme Court of New York, Second DepartmentApr 12, 1971
36 A.D.2d 830 (N.Y. App. Div. 1971)

April 12, 1971


In this special proceeding, the appeal is from a judgment of the Supreme Court, Dutchess County, dated June 25, 1970, which ordered appellants to credit petitioner with jail time toward a second indeterminate sentence imposed September 26, 1968 while he was serving an earlier indeterminate sentence. Judgment reversed, on the law, without costs, and petition dismissed on the merits. The findings of fact below are affirmed. Petitioner was serving time in Sing Sing Prison under an indeterminate sentence with a one year, three month minimum and a two year, six month maximum, imposed after his conviction of an attempt to commit grand larceny. He was transferred to the Manhattan House of Detention on July 11, 1968 to await trial on a burglary charge. On September 26, 1968 he received an indeterminate sentence with a seven year maximum on the burglary charge. In this proceeding he contends that the 77 days of jail time between July 11, 1968 and September 26, 1968 should be credited against his second and longer sentence, thereby shortening the time thereon until his ultimate release. Special Term held that petitioner was entitled to receive credit for the jail time toward the seven-year maximum term under section 70.30 Penal of the Penal Law. We reverse the determination on the ground that petitioner was serving a sentence under a prior conviction at the time of his transfer to the House of Detention and, consequently, the time served there was part of his first sentence. In such case, credit cannot be given for the same period of time toward the second sentence. Subdivision 3 of section 70.30 Penal of the Penal Law is clear in providing that jail time credit "shall not include any time that is credited against the term or maximum term of any previously imposed sentence to which the person is subject." (See, also, People ex rel. Coates v. Martin, 8 A.D.2d 688.) Rabin, P.J., Hopkins, Munder, Martuscello and Shapiro, JJ., concur.