In DuBois v. Goord, 271 A.D.2d 874, 708 N.Y.S.2d 166 (2000), the jail time credit issue was front and center.

The petitioner in DuBois, who was serving an indeterminate sentence of 5 to 15 years imposed in 1979, was released on parole but subsequently violated and returned to DOCS custody with an adjusted maximum expiration date of May 14, 1989.

In August of 1988 Mr. DuBois was transferred to county jail pending disposition of criminal charges stemming from an incident that had occurred while he was on parole. On October 13, 1988 he was again released from DOCS custody to parole supervision but remained in county jail in connection with the new charges. He was ultimately sentenced on those charges on an unspecified date in 1989 to an indeterminate sentence of 10 to 20 years.

On June 26, 1989 Mr. DuBois was received back into DOCS custody to begin serving his 1989 sentence certified as entitled to 46 days of jail time credit against such sentence covering the time period from May 14, 1989 (the adjusted maximum expiration date of his 1979 sentence) to his June 26, 1989 return to DOCS custody.

Mr. Dubois contended, however, that he was entitled to jail time credit for the entire time spent in local custody from August 11, 1988 to June 26, 1989.

The Appellate Division, Third Department, rejected this contention. Without specifically mentioning Penal Law §70.30(3), the DuBois court found as follows:

" . . . Petitioner was not entitled to a credit against the 1989 sentence for time served in County Jail prior to the expiration of the 1979 sentence because that period of incarceration was credited against petitioner's 1979 sentence . . . Because petitioner continued to serve the 1979 sentence despite his October 13, 1988 release on parole, the jail time served following his parole release and prior to the maximum expiration date of the 1979 sentence may not be credited towards the 1989 sentence . . ." (271 AD2d 874 at 875-876, 708 N.Y.S.2d 166.)