People v. Samuel Small
The secondary issue, but perhaps the more interesting one, dealt with whether time spent in custody on a parole violation that a habeas court found was not supported, could properly be tolled in order to bring an even earlier conviction within the ten year period for determining a defendant’s predicate status.
The Court held that such time should not be excluded and, therefore, the defendant was improperly sentenced as a predicate offender because the prior conviction fell outside the ten-year period.
While time in prison “for any reason” is tolled under the predicate statutes, the Court has long held that “any” does not mean “every.” In People v. Love, 71 N.Y.2d 711 (1988), and People v. Dozier, 78 N.Y.2d 242, 249 (1991), the Court found that time spent in custody on vacated convictions or otherwise unconstitutional convictions could not be tolled. This case builds on those decisions and explicitly rejects the claim that only subsequently invalidated or vacated convictions could be excluded from the tolling analysis. The analysis supports the First Department’s ruling that time spent in custody on Catu-violative offenses cannot be tolled. See People v. Jimenez (1st Dep’t Oct. 29, 2015).