This is an application by petitioner, Alvin W. McLean, presently incarcerated in the Shawangunk Correctional Facility in Wallkill, New York. In November 1993, the defendant was convicted in Queens County Supreme Court of one count of Murder in the Second Degree; one count of Attempted Murder in the Second Degree; one count of Robbery in the First Degree, two counts of Criminal Use of a Firearm, and one count of Assault in the First Degree. The defendant was sentenced to an indeterminate term of incarceration of 25 years to life for the Murder count and four terms of 8 1/3 to 25 for Attempted Murder, Robbery in the First Degree and Criminal Use of a Firearm. He was sentenced to an indeterminate term of incarceration of 5 - 15 years for Assault in the First Degree. The sentence for Attempted Murder was ordered to be served consecutively to the Murder count. The remaining sentences were ordered to be served concurrently.

Petitioner asserts that he was not properly credited by the New York City Department of Correction for the 195 days he served at Rikers Island prior to his conviction from August 7, 1987, the date of his arrest through February 18, 1988 the date he escaped from custody. Petitioner states that credit for the additional time will affect the time within which he will be eligible for parole. Petitioner also seeks an order directing the New York State Department of Corrections (DOCCS) to recompute petitioner's sentence and parole eligibility date based upon credit being given for the above specified time.

Petitioner asserts that the New York City Department of Correction (NYCDOC) is required to certify the amount of jail time credit for the period in which he was in their custody. He claims that New York State DOC must deduct that time from the remainder of the state sentence and issue a correct parole eligibility date.

Petitioner asserts that he was arrested for the subject offense on August 7, 1987 for the murder that occurred on August 3, 1987. He claims that he escaped from the custody of the NYCDOC on February 18, 1988. A bench warrant was issued by the New York State Supreme Court on February 22, 1988. Over four years later, on June 6, 1992, petitioner was arrested on the bench warrant in the State of Florida and extradited to New York for trial. The petitioner was returned to New York on June 26, 1992.

Petitioner was convicted after a jury trial and turned over to the New York State Department of Correction on December 14, 1993. Petitioner claims that he received a certificate crediting him only with 538 days in New York City custody corresponding to [*2]the jail time he served after he was returned on the warrant from June 6, 1992 through December 13, 1993 when he was placed in State custody. He states he contacted NYCDOC Custody Management Division by letter dated August 19, 2013 requesting that he be credited for jail time spent in their custody from August 7, 1987 through February 18, 1988. By letter dated October 28, 2013, from the Inmate Records Coordinator at the NYCDOC Custody Management Division, the NYCDOC refused to issue a revised certificate of jail time credit. The letter states that the records of petitioner's incarceration in NYC were no longer available. The letter states that the City Charter only requires New York City Agencies to maintain their records for twenty years and therefore they no longer possessed prisoner records for the years 1987 and 1988. The letter states that the records for those years have been destroyed. The agency asserts that the petitioner, who waited over 20 years to assert his claim waited an unreasonably long time and as such the respondent is prejudiced in that it no longer has possession of its records to make a determination.

On November 18 2013, petitioner filed an appeal of the denial of the jail time credit to a NYCDOC Record Appeals Officer The Appeals Officer did not acknowledge or respond to the appeal. In his appeal, the petitioner cited Bottom v Goord, 96 NY2d 870 [2001] in which the Court of Appeals held that "the calculation of jail time credit, pursuant to Correction Law § 600-a and Penal Law § 70.30 (3), involves a continuing, nondiscretionary, ministerial obligation." The Court also held that Correction Law § 600-a requires the City Commissioner to keep a record of the jail time to which a prisoner is entitled pursuant to Penal Law § 70.30 (3) which states that "the maximum term of an indeterminate 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." Petitioner argued that the NYCDOC would not be prejudiced as it has the means to acquire the information and verify the time he spent at Riker's Island prior to being sent upstate.

Petitioner also wrote to the New York State DOCCS on January 9, 2013, asking that his time be corrected and correcting his initial Parole Board appearance date. He received a letter from the state facility where he is housed, dated January 15, 2014, stating that the State facility is not authorized to provide additional credit jail time without certification from the NYC Departments of Correction and that he should seek redress from the NYC Department of Corrections.

The petitioner initiated the instant Article 78 proceeding [*3]in April 2014. He claims that he was required to pursue the Article 78 proceeding as he has now exhausted his administrative remedies and now moves pursuant to Article 78 for an order requiring NYCDOC to correct his jail time giving him credit for the period in question and to submit the amended certificate to the NYSDOC. He seeks an order requiring NYSDOC to correct his eligibility for parole date based upon the additional jail time credit. The Court of Appeals held in Bottom, supra that "Where a person seeks to compel the performance of a purely ministerial act, such relief may be sought through a petition in the nature of mandamus to compel.

In support of his application, the petitioner submits documents including his NYSID sheet showing that he was arrested for the instant offense on August 7, 1987 and indicted in August 1987. He was arraigned in Supreme Court on September 10, 1987. He also attaches a copy of the Bench warrant dated February 22, 1988 stating that the defendant escaped from Court. The court docket sheet also submitted by the petitioner states in the entry for February 22, 1988 that the defendant escaped from jurisdiction by posing as another defendant in a Brooklyn matter. The DD5 police report concerning the escape states that the Detective Cianfrone was informed that petitioner escaped from Rikers Island on February 18, 1988. The next entry in the docket is June 26, 1992 stating that the defendant was returned on the bench warrant.

The petitioner also submits a complaint filed in the United States District Court for the Eastern District seeking a warrant of arrest in Florida. The complaint charged Unlawful Flight to Avoid Prosecution. The complaint states that the deponent was advised by the Queens District Attorneys office that the petitioner was in custody at Rikers Island pursuant to the indictment from August 1987 until he escaped on February 18, 1988.

In opposition, the New York City Department of Correction by counsel, Katherine Ajayi, Esq., opposes the relief sought in the petition. The present certificate dated December 14, 1993 gives the petitioner credit for the day of his arrest (mistakenly stated to be August 3, 1987) and then credit for 537 days from June 25, 1992 after his arrest in Florida until December 13, 1992 when he was sent upstate for a total of 538 days. Counsel states that the City respondent is not authorized to provide an amended certificate because respondent already provided a complete time computation to NYS DOCCS. Counsel claims that here are no paper records indicating that the petitioner was in the City respondent's custody from August 1987 through February 1988 as he [*4]asserts. Counsel also states that based upon a review of the computer records the petitioner was not City respondent's custody for the time frame for which he seeks credit for. Counsel claims that the computer records, a copy of which is attached, shows that there are no recorded incarcerations for petitioner in 1987 and 1988 following his arrest in August 1987.

Respondent DOCCS, the State respondent, states that the State is not authorized to alter the jail time certificate because New York State DOCS is conclusively bound by jail time certificates issued by the New York City Department of Correction. Assistant Corporation Counsel Michael J. Keane, Esq. submits a letter from Richard de Simone, Associate Counsel in Charge of Office Sentencing Review for the State DCCS stating that when the defendant was received in the State Correctional System on December 14, 1993, he was credited by the NYCDOC with 538 days of jail time for June 25, 1992 after his return on the warrant until December 13, 1993. Based upon that credited jail time his present parole eligibility date is October 20, 2025.

In reply, petitioner argues that documents submitted including the arrest photo from 8/8/87 shows that he was in custody that date and the Supreme Court arraignment sheet shows he was arraigned on September 10, 1987 and remanded until the next court date of October 8, 1987. Petitioner also contends that the file jacket, his exhibit F, shows that he was produced in court on September 10, 1987 AA-I, October 8, 1987 J-18, October 26, 1987 J-18 , November 5, 1987, December 4, 1987, January 5, 1988, January 6, 1988, January 7, 1988 and January 29, 1988. However, the copy of the court records submitted by the petitioner which purportedly shows those dates is a dark copy which is completely illegible.

This Court finds that the documents submitted by the petitioner indicate that petitioner was in custody at Rikers Island at certain times after his arrest and prior to his escape. However, certain documents provided by the petitioner which would show the dates he was produced in Court are dark and illegible. Further, the computer information provided by NYCDOC also appears to be incomplete. Therefore, this petition shall be held in abeyance and the petitoner is directed to forward any other documents in legible form which would show the dates on which he was produced in court during the time period in question. In addition, the New York City Department of Corrections is directed to make an additional search of its computer records and any other available records which would provide the dates when the petitioner was housed in Rikers or produced in Court during the time in question. Both parties shall respond to this court no [*5]later than June 30, 2015.

Long Island City, N.Y

ROBERT J. MCDONALD

J.S.C.