Bush v. Smith , 51 A.D.2d 860 ( 1976 )

Judgment unanimously affirmed. Memorandum: Defendant committed a robbery on January 3, 1972 for which he was arrested on January 4, 1972 and sentenced on December 15, 1972 to an indeterminate period with a maximum of three years. On November 4, 1972 he committed a second robbery for which he was arrested on December 7, 1972 and sentenced on November 15, 1973 to an indeterminate term up to seven years to run concurrently with the first sentence. At the time the second sentence' was imposed, defendant was given credit against the seven-year maximum term for the seven days that he spent in jail on this charge from December 7, 1972 until December 15, 1972. In this article 78 proceeding defendant claims that he is entitled to credit on the second and longer sentence for the entire period from December 7, 1972 until November 15, 1973 even though after December 15, 1972 his imprisonment was under the validly imposed prior sentence. In asserting this contention he relies upon People ex rel. Middleton v Zelker (42 AD2d 998, affd 36 NY2d 691). That case, however, is factually different from the situation here. The credit allowed in Middleton under the doctrine of "constructive custody” was for time spent under presentence incarceration. In the instant case, defendant seeks credit for time spent in jail under a valid prior sentence. The allowance of this type of credit would be contrary to the express provisions of the Penal Law. Specifically, subdivision 3 of section 70.30 of the Penal Law states that jail-time credit on one charge "shall not include any time that is credited against the term or maximum term of any previously imposed sentence to which the person is subject.” (See, also, Matter of Canada v McGinnis, 36 AD2d 830, affd 29 NY2d 853.) (Appeal from judgment of Supreme Court, Wyoming County denying petition in article 78 proceeding.) Present—Moule, J. P., Cardamone, Simons, Dillon and Witmer, JJ.