
    The People of the State of New York ex rel. Warren Mathis, Appellant, v David R. Harris, as Superintendent of Green Haven Correctional Facility, Respondent.
   In a habeas corpus proceeding, deemed by Special Term, as a CPLR article 78 proceeding, the appeal is from a judgment of the Supreme Court, Dutchess County (Quinn, J.), dated January 7, 1980, which denied the relief sought. Judgment affirmed, without costs or disbursements. Petitioner was sentenced on February 21, 1975 to an indeterminate term of imprisonment of from 0 to 5 years. After serving three years, 14 days of that term, he was paroled. While on parole, he was arrested on a new charge. On December 1, 1978, appellant was sentenced to a 2Vz to 5-year term to run concurrently with any parole time left on the original sentence. Appellant now seeks to credit the 3 years, 14 days served on the first sentence against his second sentence. This cannot be done. In the first instance, the second imposed sentence was to run concurrently with any parole time owed on the prior sentence, not with the sentence as a whole. Clearly, appellant is not entitled to credit for time served prior to his release on parole. Furthermore, even if the two sentences were wholly concurrent, appellant would still not be entitled to credit for the entire time served. As explained in Matter of Kalamis v Smith (42 NY2d 191), the purpose of section 70.30 of the Penal Law is to give a person convicted of a crime credit for the time spent in local facilities awaiting disposition of the charge. Even if we were to assume that appellant was in “constructive custody” (see Matter of Kalamis v Smith, supra, pp 199-200) during the 3 years, 14 days of his first sentence, he would not be entitled to credit for that time, as subdivision 3 of section 70.30 is clear in providing that jail time credit “shall not include any time that is credited against the term or maximum term of any previously imposed sentence to which the person is subject”. (See Matter of Kalamis v Smith, supra, p 200; Matter of Canada v McGinnis, 36 AD2d 830, affd 29 NY2d 853.) Hargett, J.P., O’Connor, Weinstein and Thompson, JJ., concur.  