PEOPLE DABBS v. KUHLMANN (1999)

Appeal from a judgment of the Supreme Court (La Buda, J.), entered February 13, 1998 in Sullivan County, which denied petitioner's application for writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

On May 1, 1989, petitioner was remanded into the custody of the Department of Correctional Services to serve a prison sentence of 4 to 12 years.   On June 13, 1990, petitioner was sentenced to additional terms of imprisonment as a result of several unrelated convictions;  however, those convictions were subsequently vacated (see, 192 A.D.2d 932, 596 N.Y.S.2d 893, lv. denied 82 N.Y.2d 707, 601 N.Y.S.2d 604, 619 N.E.2d 682).  Following retrial in 1995, petitioner was sentenced to a prison term of 7 to 14 years, to be served concurrently with the undischarged portion of his 1989 sentence.   Petitioner thereafter commenced this habeas corpus proceeding claiming that respondent improperly declined to credit the period of May 1, 1989 through June 13, 1990 against the maximum expiration date of his 1995 sentence.   Supreme Court dismissed the petition and we affirm.   Because that period of incarceration was part of petitioner's 1989 sentence, petitioner was not entitled to credit that same time period against the maximum term of his 1995 sentence (see, penaL law § 70.30[3];  matter oF canada v. McGinnis, 36 A.D.2d 830, 321 N.Y.S.2d 166, affd. 29 N.Y.2d 853, 328 N.Y.S.2d 4, 277 N.E.2d 925).   Accordingly, we perceive no basis to disturb respondent's calculation of petitioner's maximum sentence expiration date and tentative conditional release date.

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.