OPINION OF THE COURT
Greenblott, J.On February 6, 1973 petitioner was paroled after serving four years, nine months and 12 days of a 20-year definite term of imprisonment imposed by a Florida court. On January 28, 1976 petitioner was sentenced by the Nassau County Court to two indeterminate terms of imprisonment (6-12 years and 3 1/2-7 years) following his conviction of attempted robbery in the second degree. The court ordered the sentences to run concurrently with each other and concurrently with the undischarged portion of the Florida sentence. Appellants contend that Special Term erred in crediting petitioner with the time he had served while imprisoned under the Florida sentence in computing petitioner’s minimum parole eligibility date. We agree.
*251Subdivision 2-a of section 70.30 of the Penal Law is inapplicable to the case at bar. The section provides that a New York sentence shall be deemed to commence when the defendant is "returned” to the "custody” of the appropriate official of the other jurisdiction. A defendant out on parole remains in the legal custody of the Parole Board, but the custody is merely constructive (People ex rel. Natoli v Lewis, 287 NY 478, 482; People v Santos, 31 AD2d 508, 509, affd 25 NY2d 976, cert den 397 US 969). The section applies only when the defendant is in the actual custody of the other jurisdiction. By using the words "returned to the custody”, the Legislature contemplated actual rather than constructive custody, for a defendant out on parole from another jurisdiction cannot be deemed to have been returned to its "custody”. Contrary to the reasoning of the dissent, if a defendant is not returned to custody of the other jurisdiction, then he is not entitled to the benefits of this section.
Additionally, although section 70.30 (subd 1, par [a]) of the Penal Law provides for a credit where the sentences run concurrently, the credit is only available when the sentences are indeterminate. Since petitioner was subject to a definite Florida sentence and indeterminate New York sentences, he does not qualify for the credit afforded by section 70.30 (subd 1, par [a]) of the Penal Law.
Finally, even if we were to hold that section 70.30 is applicable to the petitioner, subdivision 4 of section 70.25 provides that multiple sentences of imprisonment "shall run either concurrently or consecutively with respect to such undischarged term in such manner as the court directs at the time of sentence” (emphasis supplied). At the time of petitioner’s concurrent sentences in Nassau County, the trial court stated "[sentences are concurrent and concurrent with any time owed to the State of Florida.” Thus it was clearly the intent of the court to credit petition only with the undischarged portion of the Florida sentence, and not with that portion of the Florida sentence which petitioner had served prior to entering New York State. Thus, we reject petitioner’s contention that he was entitled to credit, in fixing his minimum parole eligibility date, for the time he had served while in prison under the Florida sentence.
The judgment should be reversed, on the law and the facts, and the petition dismissed, without costs.