A city man is challenging the length of his sentence on drunken-driving and drug convictions, saying he should be released in October, not in January, as currently scheduled.
The issue with the sentence, according to the attorney for Fred D. Clark, 41, comes down to how much credit he should get for jail time he served while waiting to be sentenced.
The difference between the two calculations is 78 days, and boils down to whether consecutive sentences are entirely consecutive or consecutive only after sentencing.
Clark filed papers Friday in state Supreme Court in Schenectady County asking a judge to resolve the issue. Named as a defendant in the filing is Schenectady County Sheriff Dominic Dagostino, who said Tuesday he is looking into the issue.
“If his time has been incorrectly calculated by either us or [the state], we will adjust it,” he said.
Clark was arrested in Schenectady in February 2011, charged with driving while intoxicated. He posted bail and was released after three days in jail.
Nearly two years later, in January 2013, with the drunken-driving case still unresolved, Clark was arrested again, this time on a drug possession count, and was ordered held in jail.
Soon after, Clark’s attorney, Steve Kouray, requested his client’s bail in the drunken-driving case be revoked, a common move by attorneys for clients facing new crimes. The move allows the defendant to accrue time served on both cases, which is useful if they are later convicted of both.
Clark soon pleaded guilty in both cases and was sentenced in April to one year in jail in the drunken-driving case and six months in the drug possession case. The sentences were to run consecutively.
The issue comes down to whether those 78 days in custody from February to April counted once, per the consecutive sentences, or toward both sentences. With credit for “good time,” Clark should be released Oct. 25, Kouray argues in the filing.
“If he was sitting in jail since February, remanded on both, my belief is that he is entitled to credit on both,” Kouray said.
“To their credit,” he added, “the sheriff is looking into it.”
If that review doesn’t go their way, Kouray said, they will pursue the legal action.