IN RE: the Application of Michael Fishbein (2025)

Petitioner Michael Fishbein—an incarcerated individual currently confined at Clinton Correctional Facility—has commenced this proceeding pursuant to CPLR article 78 against Respondent Daniel Martuscello as Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS") and Respondent Lynelle Maginley-Liddie as Commissioner of the New York City Department of Correction ("NYCDOC") to challenge Respondents' refusal to recalculate Petitioner's maximum and conditional release dates (see NY St Cts Elec Filing ["NYSCEF"] Doc No. 4 [Amended Petition]). Both Respondents have filed Answers opposing the requested relief (see NYSCEF Doc Nos. 10, 21).

For the reasons set forth below, the Amended Petition is granted in part and denied in part.

I. BACKGROUND

On September 25, 2016, Petitioner was arrested in Manhattan and charged with, among other things, assault in the second degree (the "Manhattan charges") (see NYSCEF Doc No. 4 at ¶ 7; NYSCEF Doc No. 5 at 5). He posted bail and was released on September 29, 2016 (see NYSCEF Doc No. 4 at ¶ 7; NYSCEF Doc No. 5 at 6). On January 26, 2017, Petitioner was arrested a second time—this time in Queens County—and charged with, among other things, attempted murder in the second degree (the "Queens charges") (see NYSCEF Doc No. 4 at ¶ 8; NYSCEF Doc No. 5 at 7). He did not post bail for the Queens charges and was remanded to the custody of NYCDOC (see NYSCEF Doc No. 4 at ¶ 8; NYSCEF Doc No. 5 at 7).

The Manhattan charges went to trial in March 2018, and Petitioner was convicted of assault in the second degree, a felony (see NYSCEF Doc No. 4 at ¶ 9).¹ Petitioner was sentenced to a 5-year determinate term and a 3-year period of post-release supervision on March 28, 2018 (the "Manhattan sentence") (see NYSCEF Doc No. 12 at 1). Petitioner was then transferred from the custody of NYCDOC to the custody of DOCCS on April 30, 2018, to begin serving the Manhattan sentence (see NYSCEF Doc No. 4 at ¶ 10; NYSCEF Doc No. 19 at 2). At that time, NYCDOC had issued a Jail Time Certification crediting Petitioner with 462 days of jail time for the time he spent in NYCDOC's custody prior to his transfer to DOCCS (see NYSCEF Doc No. 13).

Approximately six months later, Petitioner pled guilty to attempted murder in the second degree to resolve the Queens charges (see NYSCEF Doc No. 4 at ¶ 12). He was sentenced to a 10-year determinate term and a 5-year period of post-release supervision on October 30, 2018 (the "Queens sentence"), to run consecutively with the Manhattan sentence (see NYSCEF Doc No. 14 at 1) and resulting in an aggregate prison sentence of 15 years (see NYSCEF Doc No. 4 at ¶ 13). DOCCS then determined that Petitioner's maximum expiration date was January 22, 2032, and his conditional release date to be November 30, 2029 (see NYSCEF Doc No. 5 at 13). Petitioner appealed both the jury conviction resulting from the Manhattan charges and the Queens sentence.

The Appellate Division, Second Department, affirmed the Queens sentence on appeal (see People v Fishbein, 188 AD3d 909 [2d Dept 2020], lv denied 36 NY3d 1056 [2021]). However, the conviction resulting from the Manhattan charges (and the Manhattan sentence) was reversed by the Appellate Division, First Department, and remanded for a new trial (see People v Fishbein, 238 AD3d 543 [1st Dept 2025]). The Manhattan charges were ultimately resolved on August 13, 2025, when Petitioner pled guilty to one count of obstructing governmental administration in the second degree, a misdemeanor, and received a definite sentence of 364 days (see NYSCEF Doc No. 14 at 1).

Meanwhile, in response to the First Department's decision, DOCCS determined that Petitioner's new maximum expiration date was January 22, 2027, with a conditional release date of August 16, 2025 (see NYSCEF Doc No. 5 at 14). Approximately one week later, DOCCS adjusted Petitioner's maximum expiration date to be July 20, 2027, and his conditional release date to be February 14, 2026 (see id. at 15). It appears that DOCCS determined that Petitioner was not eligible to have the six months between April 30, 2018 and October 30, 2018—i.e. when Petitioner was serving the (now-reversed) 5-year Manhattan sentence, prior to the Queens sentence—credited towards the Queens sentence.

When contacted by Petitioner's counsel about the adjustment, counsel at DOCCS' Office of Sentencing Review took the position that an "individual's remaining sentence is not entitled to the credit between the commencement of a prior vacated sentence and the sentencing date of the sentence that remains after vacatur . . . There is no vehicle in the law to credit a person with time that he was not incarcerated by virtue of his current sentence" (id. at 21). DOCCS counsel also stated that they could not opine on whether the new Manhattan sentence merged with the Queens sentence because "DOCCS does not calculate definite sentences, [NYCDOC] has that portfolio" (id. at 18) or what time would be credited to the new definite misdemeanor sentence because "[NYCDOC] has full authority when it comes to determining what periods are credited to misdemeanors, including ones that were originally state prison sentences before their vacatur" (id. at 39). For their part, NYCDOC counsel stated that NYCDOC "does not have authority to certify state custody time" because only "DOCCS has jurisdiction over the calculation of the sentence" (id. at 41).

Petitioner thereafter commenced the instant proceeding, seeking (1) to require DOCCS to credit Petitioner with the six months he spent in DOCCS custody prior to the Queens sentencing (from April 30, 2018, to October 30, 2018) against his 10-year Queens sentence (see NYSCEF Doc No. 4 at ¶¶ 39-41); and (2) to compel NYCDOC to deliver a certified record of all jail time to which Petitioner is entitled (see id. at ¶ 42). Petitioner argues that Respondents' determinations were made in violation of lawful procedure, affected by an error of law, and arbitrary and capricious because (1) the time at issue must be credited to the Queens sentence under Penal Law § 70.30 (3) (see NYSCEF Doc No. 6 at 2-12); (2) NYCDOC has a continuing and nondiscretionary obligation to certify all jail time to which a defendant is entitled under Penal Law § 70.30 (3) (see id. at 12-14); and (3) any determination otherwise would violate Petitioner's state and federal constitutional rights (see id. at 14-19).

II. DISCUSSION

Under Section 70.30, the "term of a . . . determinate sentence . . . imposed on a person shall be credited with and diminished by the amount of time the person spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence" (Penal Law § 70.30 [3]). "The credit herein provided shall be calculated from the date custody under the charge commenced to the date the sentence commences and shall not include any time that is credited against the term or maximum term of any previously imposed sentence" (id.).

After an examination of the specific language of Penal Law § 70.30 (3) and a careful consideration of the interests of justice, the Court finds that Petitioner is entitled to have these six months credited against the Queens sentence. First, the six months at issue were clearly spent "in custody," and occurred "prior to the commencement of" the Queens sentence (Penal Law § 70.30 [3]). The Court is unpersuaded by DOCCS' argument that there is a material distinction between "jail time" in local custody and "sentence time" in state custody with respect to Section 70.30 (3) (see NYSCEF Doc No. 26 at ¶¶ 5-11). Section 70.30 (3) itself does not draw any such distinction (see Penal Law § 70.30 [3] [referring only to the amount of time spent "in custody"]; see also Matter of Guido v Goord, 1 NY3d 345, 349 [2004] ["In short, Penal Law § 70.30 (3) does not contemplate the place of detention as a factor [DOCCS] should consider when computing jail time credit"]). Additionally, although the single case cited by DOCCS refers to local custody specifically when discussing Section 70.30 (3), it does not hold that Section 70.30 (3) is inapplicable to time spent in state custody (see Matter of Manley v Annucci, 167 AD3d 1202, 1204 [3d Dept 2018] [making the general statement that "Penal Law § 70.30 (3) dictates the manner in which the time that a defendant spends in local custody awaiting the disposition of criminal charges is credited against the sentence that is ultimately imposed with respect to such charges"]).

Second, it appears to this Court that the six months of custody at issue here was, in fact, "a result of the charge that culminated in the sentence" (Penal Law § 70.30 [3]). It is undisputed that Petitioner failed to post bail for the Queens charges and was then remanded to NYCDOC's custody (see NYSCEF Doc No. 5 at 7). This hold on Petitioner remained in place until the Queens sentence was imposed on October 30, 2018; the fact that Petitioner was physically in custody of DOCCS to serve the reversed Manhattan sentence during this time does not change the fact that he was simultaneously in custody as "a result of" Queens charges (see People ex rel. Middleton v Zelker, 42 AD2d 998 [2d Dept 1973] [holding that, despite being in the physical custody of Kings County during the relevant time period, the petitioner was "entitled to be credited with time served [for charges from Westchester County] from the date of the issuance of the Westchester warrant . . . because from that date he was in the constructive custody of Westchester County], affd 36 NY2d 691 [1975]).

Finally, the Court finds that the six months of custody at issue here have not been "credited against the term or maximum term of any previously imposed sentence" (Penal Law § 70.30 [3]). This time cannot be credited against the 5-year determinate sentence from the Manhattan charges because the underlying conviction was vacated in its entirety by the First Department (cf. Matter of Manley, 167 AD3d at 1205 [holding that time was properly credited against a previously imposed sentence where that sentence was only partially reversed]). Nor is the subsequent misdemeanor conviction for the Manhattan charges a "previously imposed sentence" against which the six months of custody at issue are credited, inasmuch as that definite sentence is deemed to have commenced on the date of the vacated sentence it replaced (see Penal Law § 70.30 [5]) and thereafter immediately "merged with and was satisfied by [Petitioner's] service of the determinate" Queens sentence, "effectively running the sentences concurrently" (see People v Hall, 225 AD3d 1002, 1003 [3d Dept 2024]; see also Penal Law § 70.35).² Because all the requirements of Penal Law § 70.30 (3) have been met, the Court concludes that Petitioner is entitled to have the six months he was incarcerated between April 30, 2018, and October 30, 2018 credited against the Queens sentence.

The Court notes that, prior to the commencement of this proceeding, DOCCS counsel appeared to take the position that it was unable to credit Petitioner with the six months of incarceration at issue without some certification from NYCDOC concerning the definite sentence resulting from the Manhattan charges (see NYSCEF Doc No. 5 at 18, 39). DOCCS has failed to raise this contention at all in this proceeding and, accordingly, the Court treats it as abandoned. DOCCS is therefore instructed to adjust Petitioner's maximum expiration date and conditional release date in accordance with this Decision and Order without further delay.³

Petitioner also seeks to compel NYCDOC to deliver a certified record of all jail time to which Petitioner is entitled under Penal Law § 70.30 (3) (see NYSCEF Doc No. 4 at ¶ 42). Section 600-a of the Correction Law requires the "commissioner of correction of [the city of New York] to keep a record "of all jail time to which [a] defendant is entitled under [Penal Law § 70.30 (3)]" (Correction Law § 600-a). NYCDOC's argument that it can only be required to certify jail time credit where an inmate is specifically being transferred from local custody to state custody finds no support in the language of Correction Law § 600-a or the various cases cited by NYCDOC  ⁴ (see Bottom v Goord, 96 NY2d 870, 872 [2001] ["The calculation of jail time credit, pursuant to Correction Law § 600-a and Penal Law § 70.30 (3), involves a continuing, nondiscretionary, ministerial obligation"]). Nor is the Court persuaded by NYCDOC's argument that it cannot calculate what time has been credited to the misdemeanor resulting from the Manhattan charges without information from DOCCS; NYCDOC's own records should show that the misdemeanor is satisfied by the 462 days Petitioner spent in NYCDOC's custody prior to the date of the Manhattan sentence. That being said, however, the Court does not read Correction Law § 600-a to require NYCDOC to keep records and certify incarcerated time accrued outside of its custody absent a certified record of detention from the other carceral entity (see Matter of Ramos v Goord, 58 AD3d 921, 922 [3d Dept 2009]). Accordingly, to the extent that the Amended Petition seeks a certification from NYCDOC concerning what time in NYCDOC custody has been credited to the misdemeanor resulting from the Manhattan charges, NYCDOC must provide that certification as soon as possible. This portion of the Amended Petition is otherwise denied.

III. CONCLUSIONS

After carefully reviewing the entire record in this matter, the parties' submissions and the applicable law, and for the above-stated reasons, it is hereby

ORDERED that the First Claim for Relief in the Amended Petition (see NYSCEF Doc No. 4 at ¶¶ 39-41) is GRANTED; and it is further

ORDERED that DOCCS shall recalculate Petitioner's maximum expiration date and conditional release date for the Queens sentence such that the six months Petitioner was incarcerated in DOCCS custody between April 30, 2018, and October 30, 2018, is credited as time served for the Queens sentence under Penal Law § 70.30 (3); and it is further

ORDERED that the Second Claim for Relief in the Amended Petition (see NYSCEF Doc No. 4 at ¶ 42) is GRANTED to the extent that Petitioner seeks a certification from NYCDOC concerning the amount of time in NYCDOC custody that has been credited to the

new definite sentence resulting from the Manhattan charges; and it is further

ORDERED that the Second Claim for Relief in the Amended Petition is otherwise DENIED; and it is further

ORDERED that the Third Claim for Relief in the Amended Petition (see NYSCEF Doc No. 4 at ¶ 43) is DENIED as moot.

This shall constitute the Decision and Order of the Court. The Court has uploaded this original Decision and Order to the case record in this matter as maintained on the NYSCEF website whereupon it is to be filed and entered by the County Clerk's Office. Counsel for Respondents are not relieved from the applicable provisions of CPLR § 2220 and § 202.5-b (h) (2) of the Uniform Rules of Supreme and County Courts insofar as they relate to service and notice of entry of the filed documents upon all other parties to the proceeding, whether accomplished by mailing or electronic means, whichever may be appropriate dependent upon the filing status of the party.

Troy, New York

Laura M. Jordan

Supreme Court Justice

Papers Considered:

1. Paper Documents filed prior to Conversion.

2. Docket Numbers 4-6 (Amended Petition, Exhibits A-J, and Memorandum of Law)

3. Docket Numbers 10-19 (DOCCS' Answer, Exhibits A-H, and Memorandum of Law)

4. Docket Number 20 (Petitioner's Reply Memorandum of Law)

5. Docket Number 21 (NYCDOC's Answer)

6. Docket Number 22 (Petitioner's Reply Memorandum of Law)

7. Docket Numbers 26-27 (DOCCS' Sur-Reply and Letter Affirmation)

8. Docket Number 28 (Petitioner's Sur-Sur-Reply)

FOOTNOTES

1.   Petitioner was also convicted of theft of services, obstructing governmental administration in the second degree, and criminal trespass in the third degree (see NYSCEF Doc No. 12 at 1).

2.   The Court does not find the non-binding Wyoming County Supreme Court decision relied on by DOCCS (see NYSCEF Doc No. 5 at 25-26 [holding that Penal Law § 70.30 (3) "only applies to dismissals granted prior to the commencement of a sentence and not to a sentence vacated pursuant to such an appeal"]) to be persuasive.

3.   In light of this determination, the Court need not reach the portion of the Amended Petition arguing that the failure to credit this time against the Queens sentence would violate Petitioner's federal and state constitutional rights.

4.   Each one of those cases hold that NYCDOC must provide a certified transcript when an inmate is transferred from local custody to state custody, but not that such transfer is the only time NYCDOC can be required to do so (see Ifill v State, 149 AD3d 1287, 1290 n * [3d Dept 2017]; Matter of Branchel v LaClair, 29 Misc 3d 1107, 1110-11 [Sup Ct 2010]; Matter of Johnson v NY State Dept. of Corr. Servs., 2011 NY Slip Op 31140[U], *3 [Sup Ct 2011]).

Laura M. Jordan, J.