68 N.Y.2d 979 (1986)

When a sentence is vacated on appeal and a new sentence is imposed, the defendant is not entitled to credit for parole time served after the original sentence was vacated but before resentencing.

Summary

This case addresses whether a petitioner is entitled to credit for time spent on parole between the vacating of his initial sentence and his discharge from parole before resentencing. The Court of Appeals held that the petitioner was not entitled to such credit. The court reasoned that the Appellate Division’s vacatur of the original sentence legally interrupted it, negating any credit for parole time served after the vacatur. Penal Law § 70.30(5) only allows credit against a new sentence for time credited against the vacated sentence, and since no credit was warranted during the interruption, none could be applied to the new sentence. The court also rejected the argument that a stay of execution pending reargument entitled the petitioner to additional parole credit, as Penal Law § 70.40, concerning parole eligibility, was inapplicable because the new sentence had not yet commenced.

Facts

The petitioner was originally sentenced for a crime. The People appealed, arguing that the petitioner should have been sentenced as a second felony offender. The Appellate Division vacated the original sentence and remitted the case to the Supreme Court for resentencing as a second felony offender. During the period between the vacatur of the original sentence and resentencing, the petitioner remained on parole. After resentencing, execution of the new sentence was stayed pending reargument of the appeal, and the petitioner remained on parole for an additional period before being returned to prison.

Procedural History

The People appealed the original sentence. The Appellate Division vacated the sentence and remitted the matter for resentencing. The petitioner then brought an Article 78 proceeding arguing he was entitled to credit for time spent on parole after his first sentence was vacated. The lower courts ruled in favor of the petitioner. The New York Court of Appeals reversed the lower court’s decision.

Issue(s)

1. Whether the petitioner is entitled to credit for time spent on parole from the day his first sentence was vacated until the day he was discharged from parole, pursuant to Penal Law § 70.30(5)?

2. Whether the petitioner is entitled to sentence credit under Penal Law § 70.40 for the additional period he spent on parole after resentencing and before he was returned to prison, due to the stay of execution on his new sentence?

Holding

1. No, because the Appellate Division’s vacatur legally interrupted the original sentence, and Penal Law § 70.30(5) only allows credit against a new sentence for time credited against the vacated sentence.

2. No, because Penal Law § 70.40 applies only to prisoners who have served their minimum sentence, and the petitioner had not yet started serving his new sentence.

Court’s Reasoning

The Court of Appeals reasoned that CPL 430.10 states a sentence may not be changed, suspended, or interrupted once the term has commenced, “except as otherwise specifically authorized by law.” The Appellate Division’s vacatur of the petitioner’s original sentence constituted such a legal interruption, authorized by CPL 470.15(2). The court distinguished this case from situations where sentences are not legally interrupted. Because the sentence was legally interrupted, the petitioner was not entitled to credit for parole time served after the vacatur. The court emphasized that Penal Law § 70.30(5) allows credit against a new sentence only for time credited against the vacated sentence; since the petitioner was not entitled to credit during the interruption, it could not be applied to the new sentence. Regarding the petitioner’s claim for additional parole credit under Penal Law § 70.40, the court held that this section was inapplicable because it concerns prisoners who have served their minimum sentence, and the petitioner had not even started serving his new sentence. The court stated, “(a)n indeterminate sentence of imprisonment commences when the prisoner is received in an institution”.