257 A.D. 247 | N.Y. App. Div. | 1939
Petitioner Bitz was sentenced in the Court of General Sessions, New York county, on March 22, 1934, to serve an indeterminate sentence of from three years minimum to six years maximum in the State’s prison after conviction of the violation of section 1694-a of the Penal Law.
Thereafter the Board of Parole unanimously decided that petitioner, in spite of the Governor’s recommendation, was not a fit and proper subject for parole at that time and that his release would be incompatible with the public welfare. Parole was denied and the prisoner was directed to serve the remainder of his term. After remaining in prison approximately five years, petitioner brought a habeas corpus proceeding in Clinton county, contending that eleven months and twenty-three days recommended by the prison board to the Governor should be deducted from the maximum sentence. The County Court denied the writ. Petitioner then applied for an order under article 78 of the Civil Practice Act at Special Term directing that a peremptory order should issue to the Board of Parole of the State of New York to release petitioner Bitz from Clinton State Prison on parole. That order was granted by Special Term and the Board of Parole appeals.
The basis of petitioner’s claim is that the reduction of the minimum sentence by eleven months and twenty-three days granted by the Governor in 1936 is time given to him to which he, the petitioner, is entitled as a matter of right, and that in effect the order amounts to a reduction of time to be served in prison. The Board of Parole maintains, on the contrary, that the Governor did not reduce the maximum sentence but reduced the minimum of petitioner’s term in prison and that the maximum of it remained the same as imposed by the sentence of the court and that such reduction of the minimum did not serve the purpose of allowing the prisoner to be discharged
The Governor may grant commutations upon such conditions and with such restrictions and limitations as he may think proper. (State Const, art. 4, § 5
We find nothing to justify interpreting the Governor’s order as a commutation in any respect of the maximum sentence.
The order should be reversed and the motion denied.
Martin, P. J., O’Malley, Glennon and Dore, JJ., concur.
Order unanimously reversed and the motion denied.
Renumbered § 4 in Constitution of 1938, in effect Jan. 1, 1939.— [Rep.