IN RE: George CARDWELL (2000)

Appeal from a judgment of the Supreme Court (Lahtinen, J.), entered March 9, 2000 in Franklin County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition as time barred.

Petitioner was arrested on July 19, 1996 while on parole from a 9 to 18 year sentence.   Although a parole violation warrant was filed against petitioner in October 1996, it was lifted because a preliminary hearing was not timely held.   Thereafter, petitioner was sentenced to 2 to 4 years' imprisonment upon his conviction relating to the July 19, 1996 arrest.   On October 3, 1997, respondent issued petitioner a final declaration of delinquency which established petitioner's delinquency date as the date of the commission of the July 19, 1996 crime, thereby interrupting petitioner's underlying sentence.   Petitioner commenced this CPLR article 78 proceeding in November 1999 challenging the recalculation of his sentence.

Petitioner does not deny that he received a final declaration of delinquency.   In fact, petitioner asserts in his brief to this Court that he received such notification “sometime in November 1997”.   Inasmuch as petitioner commenced this CPLR article 78 proceeding approximately two years after he received the notification of his sentence recalculation, which is well beyond the four-month Statute of Limitations period (see, CPLR 217), Supreme Court properly dismissed the proceeding as untimely (see, Matter of Dearmas v. New York State Div. of Parole, 263 A.D.2d 709, 692 N.Y.S.2d 862).   Furthermore, contrary to petitioner's assertion, neither his inquiries into the computation of his sentence nor his out-to-court status tolled the Statute of Limitations period (see, e.g., Matter of Arce v. Selsky, 233 A.D.2d 641, 650 N.Y.S.2d 48).   In view of the foregoing, we decline to reach the merits of the petition.

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.