IN RE: the Application of Donald Thomas (2026)

The petitioner, Donald Thomas, is currently incarcerated in a correctional facility under the control of the New York State Department of Corrections and Community Supervision ("DOCCS"). He commenced this CPLR Article 78 proceeding challenging DOCCS' calculation of the remaining time on his sentence. He contends that DOCCS has failed to credit him with certain time that he spent at Westchester County Jail.

DOCCS initially defended its calculations in this proceeding by relying on the jail time certificate issued by the Saratoga County Sheriff's Office. DOCCS asserted that the Saratoga County Sheriff's Office (rather than itself) determined that Mr. Thomas was not entitled to the time requested and that the Sheriff's Office (rather than itself) was therefore the appropriate respondent in this proceeding. The Court previously rejected this defense and instead considered whether to join additional parties. The Court further noted that it lacked information necessary to consider the merits of this proceeding and therefore requested DOCCS to obtain additional information from these third parties or, alternatively, join them as parties, if necessary.

After conducting additional inquiries about the jail time credit, DOCCS provided the Court with a supplemental answer with exhibits, including, among other things, a federal sentence computation sheet and affirmations from employees of the Saratoga County Sheriff's Office and the Westchester County Department of Corrections.¹ In addition to considering the parties' submissions, the Court has also taken judicial notice of the sentencing materials on PACER regarding Mr. Thomas' prior federal sentence (discussed below), as well as the uniform commitments and transcripts filed in the state criminal case. The Court now considers the matter fully submitted, without the need to join any further parties, and hereby renders the following decision:

Background

On or about October 8, 2020, Mr. Thomas was arrested on a warrant while serving a term of supervised release on a prior federal sentence. It was alleged that he had violated the terms of his supervision by, among other things, committing certain state crimes. He was arraigned that same day before a federal court based on these allegations. About a week later, Mr. Thomas was also arraigned before the Saratoga County Court in connection with the underlying state charges against him. These federal and state proceedings remained pending over the next two years. During this time, Mr. Thomas was held primarily at the Westchester County Jail, as a federal detainee, pursuant to the facility's agreement with the US Marshals Service.

Ultimately, Mr. Thomas pleaded guilty in the state case to one count in the indictment (PL 220.43) and admitted in the federal case to violating four conditions of his supervised release. After the plea in state court, but before sentencing on the state charge, the federal court sentenced him (on October 14, 2022) for violating the terms of his supervision to a total period of imprisonment of 30 months, to run consecutively to the sentence to be imposed by the state court. The federal court expressly considered the issue of jail time, directing that "The time between [Mr. Thomas'] arrest on October 8, 2020 and October 14, 2022 should be credited to the state sentence or the federal sentence, but not both" (Federal Judgment [filed 10-20-22], at page 3 of 6, Document No. 453, SDNY, Case No. 7:11-cr-00324 [emphasis added]).

The following month, Saratoga County Court sentenced Mr. Thomas (on November 10, 2022) on his plea in the state case to a determinate term of 10 years and 5 years of post-release supervision. County Court did not express any intent to run the state sentence concurrently with the federal sentence and, as County Court did not specify how the sentence would run with the federal sentence, the sentence was to run consecutively under Penal Law § 70.25 (4) (see also Penal Law § 70.30 [2-a]). In contrast, County Court agreed that Mr. Thomas should receive all jail time credit for which he was entitled, as this was an issue raised during the plea discussions. To this end, the judgment includes the following remark: "On Count No. 5: Defendant is to receive credit for time served on this state charge out of this court."

When Mr. Thomas did not receive the jail time credit allegedly promised in the state case, he filed a motion in his state criminal action, pursuant to CPLR article 78, seeking to challenge the time computation and jail time credit calculation relative to his sentence. County Court rejected the motion as procedurally improper, concluding that the relief had to be sought in a civil proceeding rather than as a motion in the criminal action. Mr. Thomas then commenced this CPLR article 78 proceeding in Saratoga County Supreme Court against a DOCCS' employee, seeking to challenge his sentencing calculations.

Analysis

Mr. Thomas essentially contends that his state sentence should be credited with all the time he spent at the Westchester County Jail, from October 8, 2020 to November 23, 2022. The Court disagrees. Mr. Thomas was incarcerated during this period for violating his federal supervision. His supervision was ultimately revoked and, as demonstrated by the federal sentencing sheet obtained by DOCCS, this time he spent in local custody as a federal detainee has already been credited to his federal sentence. As such, this time cannot also be credited as jail time against the subsequent sentence now being served by Mr. Thomas on his state sentence (see Penal Law § 70.30 [3] [providing that such credit "shall not include any time that is credited against the term or maximum term of any previously imposed sentence or period of post-release supervision to which the person is subject"]; see e.g. Kalamis v Smith, 42 NY2d 191 [1977]; Matter of Drayton v Schiff, 232 AD3d 1027 [3d Dept 2024]; Matter of Augugliaro v New York State Dept. of Corr. & Community Supervision, 197 AD3d 1481 [3d Dept 2021]; Matter of Brown v Apple, 119 AD3d 1295 [3d Dept 2014]; Matter of McDonald v Taylor, 79 AD3d 1822 [4th Dept 2010]; People v Paccione, 74 AD3d 1363 [2d Dept 2010]; Matter of Santiago v Goord, 27 AD3d 290 [1st Dept 2006]; Govan v People, 144 AD2d 365 [2d Dept 1988]).

The Court is sympathetic to Mr. Thomas' assertion that he was promised additional jail time credit in connection with his plea. However, the "calculation of [a] defendant's sentence, including its commencement date and the amount of jail time, if any, to be credited against the sentence, is governed by Penal Law § 70.30, and [a sentencing court lacks] authority to bypass the provisions of that statute" (People v Johnson, 292 AD2d 803, 804 [4th Dept 2002]; see also People v Drake, 155 AD3d 1584 [4th Dept 2017]; People v Linares, 174 AD2d 847 [3d Dept 1991] [concluding that "since credit for jail time in defendant's circumstance is provided for by statute (see Penal Law § 70.30 [3]), no promises could have been made" with respect to jail time credit]). As such, even if Mr. Thomas had been promised additional jail time as part of his plea agreement, any such agreement would be unenforceable (see People v Johnson, 292 AD2d at 804; People v Drake, 155 AD3d at 1584-1585; People v Linares, 174 AD2d at 847-848).²

Further, the issues of whether Mr. Thomas was promised additional jail time as part of his plea and whether he should be provided with a remedy for an alleged unfulfilled promise are beyond the scope of this proceeding. These same issues recently arose in Matter of Drayton. There, the petitioner claimed that he was entitled to jail time credit for certain time spent in custody, in accordance with a promise at sentencing that he would receive credit for all time served (see Matter of Drayton, 232 AD3d at 1028). Notwithstanding the alleged promise made, the Third Department concluded that the petitioner was not entitled to the jail time credit, as it had already been credited towards a prior sentence (see id.). The Third Department further concluded that a proceeding under CPLR article 78 was an improper avenue to remedy the alleged unfulfilled promise made by the sentencing court (see id. at 1029). Rather, such challenges must be made by way of a direct appeal of a judgment of conviction or pursuant to a post judgment CPL article 440 motion made to the sentencing court (see id.; Matter of Cristostomo v Fischer, 93 AD3d 976, 977 [3d Dept 2012]; see also CPL 440.10 & 440.20).

For the reasons set forth above, the Court finds that the determination was not made in violation of lawful procedure, is not affected by an error of law, and is not irrational, arbitrary and capricious, or an abuse of discretion. The Court therefore concludes that the petition must be dismissed.

It is therefore,

ORDERED and ADJUDGED, that the petition be and hereby is DISMISSED.

This constitutes the Decision & Order of the Court. No costs are awarded to any party. The Court is hereby arranging for the filing and entry of the original Decision & Order with the Saratoga County Clerk's Office. The parties are still responsible for serving notice of entry.

So-Ordered.

Dated: September 1, 2026

at Ballston Spa, New York

HON. RICHARD A. KUPFERMAN

Justice Supreme Court

FOOTNOTES

1.   The Court thanks DOCCS for conducting further inquiries and providing these supplemental materials.

2.   For these same reasons, County Court also could not have applied the jail time credit by directing that his sentence run nunc pro tunc from the date of the arraignment on the indictment in state court (October 15, 2020). Such a maneuver was expressly rejected by the Fourth Department in People v Johnson as an improper attempt to bypass the provisions of Penal Law § 70.30 (see 292 AD2d at 804; see also People v Paccione, 74 AD3d 1363 [2d Dept 2010]). Moreover, even if the sentence had been directed to run nunc pro tunc (as discussed in the plea and sentencing minutes), the Court questions whether it would have made any difference because the commencement date of the sentence is governed by statute (Penal Law § 70.30 [1]) rather than by the date on the judgment. In this case, Mr. Thomas' sentence did not begin to legally run until December 1, 2023, when he was received into the state facility to begin serving his state sentence, as determined by DOCCS in its calculations (see Penal Law § 70.30 [1]).

Richard A. Kupferman, J.