IN RE: Eric TITMAS (2005)

Appeal from a judgment of the Supreme Court (La Buda, J.), entered October 7, 2004 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent computing petitioner's jail time credit.

In May 2001, petitioner, who suffers severe physical and mental disabilities as a result of a traumatic brain injury, was convicted upon his plea of guilty of the crime of sodomy in the first degree.   Petitioner requested that his sentencing be deferred so that he could receive treatment for his disabilities at an out-of-state private residential rehabilitation hospital.   After a hearing, County Court (La Buda, J.), issued an order granting petitioner's request subject to a number of restrictions, which included releasing petitioner upon the posting of a bond by petitioner's father consisting of the equity in the family residence and authorizing a family member to transport petitioner from the Sullivan County Jail to the hospital.   Approximately 13 months later, petitioner was released from the hospital and returned to County Court, where he was sentenced to a five-year prison term in accordance with his plea agreement.   In February 2004, petitioner requested that respondent certify the time he spent at the rehabilitation hospital as jail time pursuant to Penal Law § 70.30(3).   After petitioner's request was denied, he commenced this CPLR article 78 proceeding.   Finding that petitioner had not been in custody as contemplated by Penal Law § 70.30(3), Supreme Court dismissed the petition, prompting this appeal.

We affirm.   Respondent properly excluded the period of time that petitioner voluntarily spent at the private residential rehabilitation hospital from the computation of his jail-time credit (see Matter of Poole v. Koehler, 160 A.D.2d 880, 880, 554 N.Y.S.2d 312 [1990] ) since petitioner was on bail during this period of treatment and not in actual custody (see Matter of Hawkins v. Coughlin, 72 N.Y.2d 158, 162-163, 531 N.Y.S.2d 881, 527 N.E.2d 759 [1988];  People ex rel. Fancher v. Wasser, 244 A.D.2d 79, 81, 676 N.Y.S.2d 289 [1998];  Matter of Poole v. Koehler, supra at 880, 554 N.Y.S.2d 312).   Moreover, petitioner's admission to the rehabilitation hospital was “not a condition imposed by County Court prior to sentencing, but rather was an accommodation for [his] benefit agreed to by the People and permitted by the court” (People v. Fortunato, 234 A.D.2d 713, 714, 651 N.Y.S.2d 644 [1996], lv. denied 89 N.Y.2d 1035, 659 N.Y.S.2d 865, 681 N.E.2d 1312 [1997] ).

ORDERED that the judgment is affirmed, without costs.

LAHTINEN, J.

CARDONA, P.J., MERCURE, PETERS and ROSE, JJ., concur.