Petitioner is an inmate at the Cape Vincent Correctional Facility. This is a proceeding pursuant to CPLR Article 78 to challenge Respondent's calculation of Conditional Release date.

On November 10, 2022, Respondent determined that Petitioner's Conditional Release date was April 18, 2025. On January 30, 2023, Respondent amended its findings and determined [*2]that Petitioner's Conditional Release date was December 17, 2025. Petitioner alleged that Respondent Holford upheld that decision on June 24, 2024.

The underlying conviction is Attempted Criminal Possession of a Weapon in the Second degree, for which Defendant was sentenced on October 11, 2022, to a 5-year determinate term plus 5-years post release supervision. Petitioner claims he was detained from January 13, 2021, to October 11, 2022, awaiting trial on same charge, without any other detainer or parole warrant hold, and seeks credit for such time against his current sentence pursuant to Penal Law § 70.30 (3).

Respondent asserts that the detention period running from January 13, 2021, to September 8, 2021, was applied to Petitioner's 2017 conviction for Attempted Criminal Possession of a Weapon in the Second Degree, for which he was sentenced to a determinate term of 3 ½ years, and 5-years post release supervision, with a post-release maximum expiration date of September 8, 2021.

Petitioners seeks Judgment directing Respondent to correct his sentencing record.

Respondent's Answer primarily consists of general or conclusory denials. Respondent also pled an objection in point of law pursuant to CPLR R 3211 (a) (7), to wit: Failure to state a cause of action.

The review standard requires that a Court "must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiffs every possible favorable inference." (see Chanko v. Am. Broad Companies, Inc., 27 NY3d 46, 52 [2016]; Conklin v Laxen, 180 AD3d 1358, 1362 [4th Dept. 2020]; Piller v Tribeca Dev. Group LLC, 156 AD3d 1257, 1261 [3d Dept. 2017]).

In Wedgewood Care Ctr. v. Kravitz, 198 AD3d 124, 130 [2d Dept. 2021], the court held, however,

"On a motion to dismiss for failure to state a cause of action, the pleading is to be afforded a liberal construction. The facts alleged in the complaint must be accepted as true, and the plaintiff is entitled to receive the benefit of every possible favorable inference. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.

However, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration, nor to that arguendo advantage." (emphasis added; internal quotations and citations omitted)

Here, as more fully appears below, the allegations in the Petition do not allow for an enforceable right of recovery, and thus fails to state a cause of action (see Berrian v. Carpenter, 19 AD3d 769 [3d Dept. 2005]; Meer v. Bugliarello, 147 AD2d 568 [2d Dept. 1989]).

As a preliminary matter, Respondent has,

"a continuing, nondiscretionary, ministerial duty to make accurate calculations of terms of imprisonment, which requires that known errors be corrected" (See Matter of Drayton v. Schiff, 232 AD3d 1027, 1029 [3d Dept. 2024]). (Internal quotation omitted)

The point made is that Respondent has the right and obligation to make amendments as needed. The issue is whether they did so correctly. The did!

Penal Law 70.30 (3) provides:

The term of a definite sentence, a determinate sentence, or 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. In the case of an indeterminate sentence, if the minimum period of imprisonment has been fixed by the court or by the board of parole, the credit shall also be applied against the minimum period. 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 or period of post-release supervision to which the person is subject . . . .

In seeking credit for the period January 13, 2021, to October 11, 2022, Petitioner failed to account for the fact that he had already received credit for the period January 13, 2021, to September 8, 2021, toward the sentence imposed upon his 2017 conviction. By its terms, jail credit for time in custody cannot be applied twice (Matter of Drayton v. Schiff, supra. at 1028, where the Court held,

"The jail time credit petitioner seeks to be applied was already credited toward his 2014 sentence and, as such, it cannot also be used as a credit toward his 2021 sentence.")

In turn, Respondent properly credited his detention for the period September 9, 2021, to his sentencing in 2022, and determined his Conditional Release date is December 17, 2025.

For the reasons more fully stated above, the Petition is Dismissed. This memorandum constitutes both the decision and order of the Court.