IN RE: James S. LAGO (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:  In this CPLR article 78 proceeding challenging the calculation of his prison sentence, petitioner appeals from a judgment dismissing his petition.  Petitioner was convicted of several felony offenses in 2008 and 2010 and was sentenced to an aggregate maximum prison term of nine years.  Following his release to parole supervision, petitioner was charged with a new felony offense and was held in a local jail during the pendency of that action.  In 2016, petitioner was convicted of the new felony and was sentenced, as a second felony offender, to a prison term of 31/212 to 7 years, to run consecutively to the undischarged sentence (see Penal Law § 70.25 [2–a] ). The St. Lawrence County Sheriff and the Department of Corrections and Community Supervision applied to petitioner's undischarged sentence a jail time credit for a period of approximately three months that petitioner spent in the local jail during the pendency of the 2016 action and after he was restored to parole supervision.  Petitioner contends that Supreme Court erred in dismissing the petition because that time was improperly credited against the undischarged parole sentence rather than the 2016 sentence.  We affirm.

As a preliminary matter we note that, contrary to the contention of respondent Kevin M. Wells, Sheriff, St. Lawrence County, petitioner's appeal is properly taken as of right because the proceeding below culminated in a judgment (see CPLR 411, 5701[a][1];  7806).

A person is prohibited from receiving jail time credit against a subsequent sentence when such credit has already been applied against the maximum term of a previously imposed sentence to which that person is subject (see Penal Law § 70.30[3];  Matter of Graham v. Walsh, 108 A.D.3d 1230, 1230, 969 N.Y.S.2d 707 [4th Dept. 2013] ).  Petitioner contends that the credit cannot be applied against his prior sentence because he is no longer incarcerated on that sentence.  We reject that contention.  A person continues to serve his or her sentence while on parole (§ 70.40[1][a] ).  Moreover, a person who is on parole remains on parole even when that person is incarcerated in a local jail (see People ex rel. Hayes v. New York State Dept. of Correctional Servs., 78 A.D.3d 1591, 1592, 910 N.Y.S.2d 728 [4th Dept. 2010], lv denied 16 N.Y.3d 705, 2011 WL 536607 [2011] ).  Here, the jail time credit was properly applied to reduce petitioner's undischarged sentence of parole, which had resumed running (see Penal Law § 70.30[3] ), and “that time period may not also be credited to the [2016] sentence” (Matter of Maldonado v. Howard, 148 A.D.3d 1501, 1502, 49 N.Y.S.3d 317 [3d Dept. 2017], lv denied 29 N.Y.3d 916, 2017 WL 3908226 [2017] ).