The following electronically filed documents read on this petition submitted by KANE MOTTA for an order 1) instructing the New York City Sheriff’s Office to provide the New York State Department of Corrections and Community Supervision with a computation of the time petitioner spent in custody; and 2) instructing the New York State Department of Corrections and Community Supervision to re-calculate petitioner’s Jail Time credit pursuant to Penal Law 70.30(3) to include the time petitioner spent on electronic monitoring: Papers Numbered: Notice of Petition-Petition-Exhibits EF 8-17 Notice of Cross Motion-Affirmation-Exhibits EF 16-25 Petitioner KANE MOTTA’s counsel brings this petition on his behalf pursuant to Article 78 of the CPLR, alleging that he is entitled to Jail Time credit for the time that he spent “in the custody of the New York City Sheriff’s Office” while on house arrest and electronic monitoring. This Court will not address the claim related to respondent NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, as the parties have stipulated to dismiss the matter as against said respondent. Petitioner is currently in the custody of the New York State Department of Corrections and Community Supervision, serving a 4-year term of incarceration, plus 3 years post-release supervision pursuant to his conviction for Criminal Possession of a Weapon in the 2nd Degree under Queens County Indictment No.: 897/2020. Petitioner was sentenced in that matter on January 25, 2022. Prior to entering State custody, petitioner was in the custody of the New York City Department of Corrections from June 1, 2020 to July 6, 2021 for a total of 401 days. Petitioner’s release on July 6, 2021 was pursuant to an Appellate Division, Second Department Order issued on April 20, 2021. The Order states that bail was set at $250,000.00, and upon his release, petitioner was required to 1) wear an electronic monitoring bracelet; 2) remain confined to his residence in Queens County except for visits to his attorney, doctors, or court; 3) surrender all passports; and 4) provide the Office of the District Attorney of Queens with an affidavit in which petitioner attests that if he leaves the jurisdiction, he agrees to waive the right to oppose extradition from any foreign jurisdiction. After posting bail, petitioner was released from the Department of Corrections to house arrest and electronic monitoring in accordance with the Appellate Order instructions. Petitioner’s counsel states that in September of 2021, petitioner was offered a plea deal. A copy of the proposed plea deal made via email by a Bureau Chief at the Queens County District Attorney’s Office is submitted in support. The email states, in pertinent part: “On a plea to criminal possession of a weapon in the second degree [PL §265.03(1)(b)], the People will agree to a sentence of four years imprisonment with three years of post-release supervision. Moreover, I will consent to your client remaining on electronic monitoring (“EM”) pending sentence, but without being on house arrest, assuming the NYC Sheriff’s Department deems this feasible. So long as your client remains on EM and stays in NY State pending sentence, I will not object to adjourning sentence as long as to the first business day of 2022. Time spent by your client on EM should be calculated as Jail Time under PL §70.30(3).” Petitioner’s counsel states that when petitioner entered into his plea, it was with the understanding that the People would not object to the time petitioner spent on electronic monitoring counting as Jail Time for the purpose of his sentence calculation. However, petitioner’s Jail Time calculation from the New York City Department of Corrections does not include the number of days petitioner spent in the custody of the Sheriff’s Office while on house arrest and electronic monitoring. Counsel also states that upon contacting the Sheriff’s Office to discuss the matter, the Office’s position was that the time in question does not count as Jail Time, and as such, the Office would not provide a computation of the time petitioner spent in its custody. Now, counsel argues that pursuant to Penal Law §70.30(3), the time petitioner spent in the custody of the Sheriff’s Office should count as jail time. Penal Law §70.30(3) relates to Jail Time calculations. It states, in pertinent part: “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…The credit herein provided shall be calculated from the date custody under the charge commenced to the date the sentence commences…” The applicable standard of review in this Article 78 proceeding is found in CPLR §7803(3): “Whether a determination was made in violation of lawful procedure, was effected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.” In Hawkins v. Coughlin, 72 N.Y. 2d 158, 162 (1988), the Court of Appeals of New York held that “release on bail or parole does not constitute ‘custody’ within the meaning of Penal Law §70.30(3). The legislative history of Penal Law §70.30(3)…establishes that the term ‘custody’ was intended to mean ‘confinement’ or ‘detention’ under guard and not ‘constructive custody’ such as release on parole or bail.”. In Franks v. Koehler, 159 A.D. 2d 213, 215 (1st Dept. 1990), the Appellate Division held that “home confinement as a condition of probation and release on bail pending appeal does not constitute ‘custody’ within the contemplation of the statute.” Counsel states that the petitioner acknowledges that he was out on bail during the time in question, and that the time an individual spends released on bail normally does not count as jail time. However, he argues that the combination of electronic monitoring, house arrest, and the fact that petitioner was subject to the jurisdiction of a law enforcement agency distinguishes petitioner’s time from being released on cash bail or on one’s own recognizance. Counsel further argues that there is no indication from the statute that time spent under electronic monitoring does not count as Jail Time, and there is no binding or controlling decision which would indicate that time spent in the custody of the Sheriff’s Office prior to the commencement of a sentence of incarceration does not count as jail time. Further, counsel argues that given the fact that there is no statutory basis or controlling decision to cite to, the refusal of the Sheriff’s Office to provide a computation of the time that petitioner spent in its custody is arbitrary and capricious. Here, counsel’s argument suggests that given petitioner’s bail conditions, his time spent on bail should be considered custodial within the meaning of Penal Law §70.30(3). This logic is unpersuasive. The conditions of petitioner’s bail decided by the Appellate Division fit squarely within the controlling caselaw cited above, and these conditions amount to constructive custody rather than custody under guard. As such, the Sheriff’s Office’s decision not to calculate the time spent on bail was not arbitrary and capricious, but rather, was in alignment with the applicable statute. In regard to the plea offer made via email, and petitioner’s statement about his understanding when entering the plea, this Court notes that no copy of the plea deal entered into by petitioner was submitted in support of this motion. Further, the Court does not hold the authority to allow for Jail Time credit that is not authorized by §70.30(3). It is also noted that a guilty plea induced by an unfulfilled promise must be vacated, or the promise honored (see People v. Collier, 22 N.Y.3d 429, 433, 982 N.Y.S.2d 34, 5 N.E.3d 5 [2013], cert. denied 573 U.S. 908, 134 S.Ct. 2730, 189 L.Ed.2d 770 [2014], quoting People v. Selikoff, 35 N.Y.2d 227, 241, 360 N.Y.S.2d 623, 318 N.E.2d 784 [1974], cert. denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 [1975] ). However, that choice is in the discretion of the sentencing Court, and thus is not within this Court’s purview. Given that the time spent on bail is not considered to be custodial within the meaning of Penal Law §70.30(3), this Court finds that the New York City Sheriff’s Office’s refusal to provide the New York State Department of Corrections and Community Supervision with a computation of the time petitioner spent on bail was not arbitrary or capricious. Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED that petitioner’s motion is denied, and the petition is hereby dismissed. Dated: July 6, 2022
