This is a habeas corpus proceeding that was originated by the Petition for a Writ of Habeas Corpus of Joseph Camp, verified on April 8, 2007, and stamped as filed in the St. Lawrence County Clerk's Office on April 10, 2007. Petitioner, who is an inmate at the Gouverneur Correctional Facility, is challenging his continued incarceration in the custody of the New York State Department of Correctional Services. The Court issued an Order to Show Cause on April 20, 2007, and has received and reviewed respondent's Return, dated June 1, 2007, as well as petitioner's Reply, dated May 26, 2007, and stamped as filed in the St. Lawrence County Clerk's office on May 31, 2007.^[FN1]

On January 21, 2004, the petitioner was sentenced in Tompkins County Court, to an indeterminate sentence of imprisonment of 1 to 4 years, upon his conviction of the crime of Robbery 2�. He was received into DOCS custody on January 26, 2004, certified as entitled to 62 days of jail time credit (Penal Law §70.30(3)). On April 28, 2005, the petitioner was released from DOCS custody to parole supervision. On October 29, 2005, however, the petitioner was arrested in connection with new criminal charges and declared delinquent as of that date. On November 20, 2006, the petitioner was sentenced in Tompkins County Court in connection with those new criminal charges to a determinate term of two years, with one and one-half years post-release supervision. The sentencing court did not specify whether the November 20, 2006, sentence would concurrently or consecutively with respect to the undischarged term of the January 21, 2004, sentence. The petitioner was received back into DOCS custody on November 21, 2006, certified as entitled to 388 days of jail time credit (Penal Law §70.30(3)) for time spent in local custody from October 29, 2005, to November 21, 2006. No parole jail time credit (Penal Law [*2]§70.40(3)(c)), however, was credited against the maximum term of petitioner's January 21, 2004, sentence. DOCS calculated petitioner's adjusted maximum expiration date to be December 15, 2008, and his earliest conditional release date as April 7, 2008.

The petitioner contends, in effect, that DOCS officials erroneously failed to credit the 388 days he spent incarcerated in local custody from October 29, 2005, to November 21, 2006, against the four-year maximum term of his January 21, 2004, sentence. With the application of such credit the petitioner contends that his properly calculated maximum expiration date is in November of 2007, and that his properly calculated conditional release date was in March of 2007. For the reasons set forth below, however, the court finds that DOCS has properly calculated petitioner's maximum expiration and conditional release dates.

There is no dispute that petitioner's November 20, 2006, determinate sentence must be calculated as running concurrently with the unexpired term of his January 21, 2004, indeterminate sentence. See Penal Law §70.25(1)(a). Under such circumstances, ". . . the time served under imprisonment on any of the sentences shall be credited against the minimum periods of all the concurrent indeterminate sentences and against the terms of all the concurrent determinate sentences. The maximum term or terms of the indeterminate sentences and the term or terms of the determinate sentences shall merge in and be satisfied by discharge of the term which has the longest unexpired time to run." Penal Law §70.30(1)(a).

The four-year maximum term of petitioner's January 21, 2004, indeterminate sentence, reduced by 62 days of jail time credit, would require the petitioner to serve 3 years, 9 months and 28 days after he was received into DOCS custody on January 26, 2004. Thus, DOCS properly calculated the initial maximum expiration date of the January 21, 2004, sentence to be November 23, 2007. The running of that indeterminate sentence, however, was interrupted by petitioner's October 29, 2005, delinquency date, and that interruption continued until he was returned to DOCS custody on November 21, 2006. See Penal Law §70.40(3)(a). When the 2 years and 24 days of delinquent time petitioner owed, as of the delinquency date, on the maximum term of his January 21, 2004, sentence is computed as running from his November 21, 2006, return to DOCS custody, an adjusted maximum expiration date of December 15, 2008 is produced.The two-year term of petitioner's November 20, 2006, determinate sentence, reduced by 388 days of jail time credit, would require the petitioner to serve 11 months and 7 days. When 11 months and 7 days is computed as running from petitioner's November 21, 2006, return to DOCS custody, an interim date of October 27, 2007, is produced. Under the previously discussed provisions of Penal Law §70.30(1)(a), the one year, three months and two days petitioner served under imprisonment in connection with his January 21, 2004, sentence (January 21, 2004, to April 28, 2005) is subtracted from the interim date to produce a maximum expiration date of July 25, 2006.

Since the maximum term of petitioner's January 21, 2004, indeterminate sentence has a longer unexpired term to run than the term of petitioner's November 20, 2006, determinate sentence, the merged maximum term of petitioner's indeterminate sentence and term of his determinate sentence are statutorily deemed satisfied by the discharge of the maximum term of the January 21, 2004, indeterminate sentence.

The Court finds that the 388 days of jail time credit (Penal Law §70.30(3)) applied [*3]against the term of petitioner's November 20, 2006, determinate sentence is not properly applicable against the maximum term of petitioner's January 21, 2004, indeterminate sentence, since the 388 days petitioner spent in local custody from October 29, 2005, to November 20, 2006, came after petitioner's January 21, 2004, sentence commenced running on January 26, 2004. See Thomas v. Moody, 85 Misc 2d 666. The Court notes that jail time credit pursuant to Penal Law §70.30(3) is available only with respect to ". . . the amount of time the person [DOCS inmate] spent in custody prior to the commencement of such [indeterminate] sentence . . ." (emphasis added). As alluded to previously, the petitioner in this proceeding seeks jail time credit for time spent in local custody after his indeterminate sentence of imprisonment had commenced running. Accordingly, the Court finds that the petitioner is not entitled to an additional 388 days of jail time credit (Penal Law §70.30(3)) against the maximum term of his January 21, 2004, indeterminate sentence, for time spent in local custody after that indeterminate sentence of imprisonment had commenced running.

For the reasons set forth below the Court also finds that the petitioner is not entitled to parole jail time credit (Penal Law §70.40(3)(c)) against the maximum term of his January 21, 2004, indeterminate sentence for the 388 days spent in local custody from his October 29, 2005, delinquency date until his return to DOCS custody on November 21, 2006. In this regard the Court notes that Penal Law §70.40(3)(c) provides as follows:

"(c) Any time spent by a person in custody from the time of delinquency to the time service of the sentence resumes shall be credited against the term or maximum term of the interrupted sentence, provided:

(i) that such custody was due to an arrest or surrender based upon the delinquency; or

(ii) that such custody arose from an arrest on another charge which culminated in a dismissal or an acquittal; or

(iii) that such custody arose from an arrest on another charge which culminated in a conviction, but in such case, if a sentence of imprisonment was imposed, the credit allowed shall be limited to the portion of the time spent in custody that exceeds the period, term or maximum term of imprisonment imposed for such conviction."

Based upon all of the above, it is, therefore, the decision of the Court and it is hereby

ADJUDGED, that the petition is dismissed.

Dated:August 9 , 2007 at

Indian Lake, New York___________________________