1 Misc. 2d 267 | N.Y. Sup. Ct. | 1955
This is a writ of habeas corpus. The relator contends that Edward J. Kenny (the person in whose behalf the proceeding is brought) is being illegally detained in prison. It is asserted that his maximum sentences have expired and that he is now entitled to his freedom. Testimony was Heard, decision was reserved on the issues presented, and briefs were submitted by the respective parties.
Kenny, unfortunately, is an habitual criminal. He was first arrested at the age of fifteen. Since that time- — -and he will be thirty-six years of age on his next birthday — his life pattern has evolved into cycles of being in and out of criminal courts and prisons. The problem before me is not one to be resolved on the basis of appeals for mercy or the merits of punishment or ascertainment of the basic causes of Kenny’s early and many conflicts with society. Neither is it one of the propriety of the policy of the repeated releases on parole which Kenny has enjoyed and abused. Nor is it for me to delve into the appropriateness of the exercise of discretion by the board in the making of any of its determinations and of its reconsideration thereof. The issue here is solely and entirely one of law — of the power and jurisdiction of the State Board of Parole to make the several determinations that it did — some seemingly favorable to Kenny; others not.
Insofar as a proper disposition of this writ is concerned, we can begin with Kenny’s career as of February 14, 1940. To aid in an understanding of the problem, I have prepared from the evidence presented (and annex as an appendix) a schedule of the computations of the “ time ” involved from that date. It appears that, after conviction of burglary in the third degree, Kenny, on February 14, 1940 (A)
At the present time Kenny is awaiting transfer to State’s prison to serve his maximum sentence — if this court should decide that the sentences do not expire before October 5, 1957
Notwithstanding a tangential submission presented by the respondents (which will be later discussed), there is in my opinion, but one basic issue to be decided by the court on this writ — and that is whether the earlier determination of the board (that in effect resulted in the two sentences running concurrently in part) was conclusive and binding upon it, so that, when the parolee was adjudged a parole violator in March, 1948, the board could not later change its determination so as to provide that the unexpired terms of his sentences should be regarded as running consecutively. It is the relator’s contention that, having once exercised its discretion in this case, the board did not have the power to reconsider and change its determination, whether in the light of new developments or otherwise.
Section 219 of the Correction Law, as it then read (L. 1939, ch. 753), is relied upon by the petitioner. In its relevant portions, it provides: “ If any prisoner be convicted * * * of a felony committed while on parole * * * he shall, in addition to the sentence which may be imposed for such felony, and before beginning to serve such sentence, be compelled to serve in state’s prison the portion remaining of the maxiumm term of the sentence on which he was released on parole from the time of such release on parole to the expiration of such maximum. * * * In the case of such prisoner released on parole from the Elmira reformatory the board of parole may in its discretion require him to serve such portion remaining of the maximum term of his sentence as the board shall deem appropriate.” From a reading of this statute, it is plain that while the power of the board to act as it did here — after the felony committed on parole — is indisputable, it is not so clear (from the language of this statute) that the board may act after a misdemeanor committed on parole. Nor does it appear (from the wording of this section) that in any case of delinquency,
‘ ‘ Parole is not a right, but a privilege, to be granted or withheld as discretion may impel.” (People ex rel. Cecere v. Jennings, 250 N. Y. 239, 241; see, also, People ex rel. Ingenito v. Warden, 267 App. Div. 295, 300, affd. 293 N. Y. 803.) Not even a prisoner’s compensation or earned time while in prison (Correction Law, art. 9) is such a matter of vested right that it cannot be cancelled by the State Board of Parole for a violation of the parole agreement (Correction Law, §§ 218, 219; People ex rel. Gariti v. Brophy, 255 App. Div. 823, appeal dismissed 279 N. Y. 778; People ex rel. Threadcraft v. Brophy, 255 App. Div. 823). The board has “the duty of determining what prisoners * * * may be released on parole and when and under what conditions.” (Correction Law, § 210.) “ No prisoner shall be released on parole * * * [unless] the board of parole is of opinion that there is reasonable probability "that, if such prisoner is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society. If the board of parole shall so determine, such prisoner shall be allowed to go upon parole outside of prison walls and inclosure upon such terms and conditions as the board shall prescribe, but to remain while thus on parole in the legal custody of the warden of the prison from which he is paroled, until the expiration of the maximum term specified in his sentence ” (Correction Law, § 213).
In pursuance of section 213 of the Correction Law, which (as has been seen) empowers the board to impose conditions to a prisoner’s release, the board required (and this inmate signed) a parole agreement on June 3, 1943, reading as follows:
“I * * * promise to abide by all the rules and regulations governing inmates of any state prison of which I may be an inmate. In promising this, I fully realize that any failure on my part to conduct myself in conformity with such rules and regulations, may result in the revocation of my parole and of the permission to start my new sentence.
“ In this event I know that the Board of Parole may, and can, end this parole as of the date of my misconduct, and charge me with any part of the balance of my sentence * * *.
The prisoner’s two sentences involved here — that commencing February 14, 1940, in Elmira (A) and that commencing March 11,1943, in Sing Sing (L) —were initially directed to be served consecutively (Correction Law, § 219; Penal Law, § 2190, subd. 2; Matter of Riccardi v. Wilson, 254 App. Div. 603). Only by virtue of parole were they allowed to run concurrently. As appears from the release paper dated July 12, 1946, the board determined that the inmate was to serve one year on his original sentence (A), and then begin to serve his second sentence on March 11,1943 (L), and it fixed the maximum expiration date at January 22, 1953 (P) —thus indicating that the balance of the original sentence was to run concurrently with the second. Accordingly, the consolidated parole term of the inmate would expire on that date, January 22,1953 (P).
The respondents contend that the parole board did not have the power to order (in effect) the concurrent running of time on these sentences. Assuming that the respondents (of whom the State Board of Parole is one) may thus confess error and on that basis seek to keep the parolee in custody — a matter which I shall not now pass upon — it seems to me that their contention is but a surrender to a counsel of unnecessary despair. It is not needed to sustain the respondents’ position in chief.
Subdivision 3 of section 2190 of the Penal Law provides that “ Where a person is convicted of two or more crimes and is sentenced to more than one term of imprisonment to be served consecutively, if such person is paroled after serving the minimum term of either such sentence, he shall be subject to the jurisdiction of the board of parole until the expiration of the maximum terms of all such consecutive sentences.” In the July 12, 1946, document, the maximum expiration date of the Sing Sing sentence was set at January 22,1953 (P). But the Elmira sentence had not terminated; it was merely running concurrently
On the other hand, I hold that the respondents are on sound ground in contending that the first sentence was not terminated when service of the second sentence was commenced. In People ex rel. Robinson v. Murphy (260 App. Div. 836, motion for leave to appeal denied 261 App. Div. 1035) the prisoner had been reparoled from one sentence to begin serving a second one for a crime committed while on parole. Thereafter he was released and subsequently declared delinquent. He was returned as a parole violator and it was determined that he owed time on both sentences. He contended that his first sentence was finally and conclusively terminated when he began the service of his second sentence, and that he was then entitled to release. This contention was held erroneous (see, also, People ex rel. Whitney v. Blanchard, 170 Misc. 4, and Correction Law, § 220).
When the State Board of Parole conditionally releases a prisoner, he remains in the legal custody of the Department of Correction until the expiration of his maximum sentence (Correction Law, §§ 220, 281). In my opinion, so long as the term of an inmate -has not expired, the board may, in the exercise of its discretion, change, modify or alter any of its determinations relative to the delinquent time owed by the inmate. In People ex rel. Kohlepp v. McGee (256 App. Div. 792, appeal dismissed 282 N. Y. 677) the prisoner had already earned — according to an earlier determination of the parole board — certain time off for good behavior. Later, the board changed its decision and in a de novo exercise of its discretion it held that the prisoner was not eligible for parole. This latter action was upheld by the court. It is only after the expiration of the time for which
The action of the parole board, in the exercise of its discretion, revoking a prisoner’s parole and ordering him returned to prison, is not subject to review by habeas corpus so long as the board does not act in contravention of law (People ex rel. Kurzynski v. Hunt, 250 App. Div. 378, 379, motion for leave to appeal denied 275 N. Y. 652, certiorari denied 303 U. S. 654; cf. Matter of Hines v. State Bd. of Parole, 293 N. Y. 254; People ex rel. Ambrosio v. Brophy, 253 App. Div. 871, affd. 278 N. Y. 639; Matter of O’Connor v. State Bd. of Parole, 270 App. Div. 93, 96). “ Thus so long as the Board violates no positive statutory requirement, its discretion is absolute and beyond review in the courts ” (Matter of Hines v. State Bd. of Parole, supra, p. 257; see Matter of Razukas v. New York State Dept, of Correction, 186 Misc. 429, 433; Matter of Spitale, 276 App. Div. 632, 634, affd. 302 N. Y. 616; People ex rel. Kammerman v. Snyder, 73 N. Y. S. 2d 893, 894, and see, also, Matter of Bitz v. Canavan, 257 App. Div. 247). In a habeas corpus proceeding the petitioner must assume the burden of proof of overcoming the presumption of legality and regularity (People ex rel. Albanese v. Hunt, 292 N. Y. 528, 529). In my view, not only has the relator here failed to rebut this presumption, but, on the entire record, I find that the facts and the law support the determinations of the parole board. The inmate’s sentences have not expired. He is not being unlawfully detained. The writ is dismissed. The prisoner is remanded. Order signed.
(See Appendix following)
The First Sentence — February 13, 1940 (for a maximum of ten years)
Tear Month Day
A. Began serving first (Elmira) sentence 1940 2 14
B. Maximum term .................... 10 0 0
0. Expiration date at time of sentence... 1950 2 13*
D. Jail time allowed................... 0 1 15
E. Adjusted maximum expiration date.. 1949 12 28
F. Date paroled ...................... 1941 8 29
Q-. Unexpired term when paroled........ 8 3 29
H. Date returned to Sing Sing on both sentences, the Elmira sentence to be served first (arrested January 19, 1942; convicted March 9, 1942) 1942 3 11
I. Expiration date at time of new sentence (parole granted February 17, 1943 — effective March 11, 1943, service of new sentence to begin March 11, 1943)................. 1950 7 10
J. Declared delinquent (convicted March 18, 1947, and sentenced to Bikers Island for indeterminate term)____ 1947 1 13
K. Unexpired term when returned to Sing Sing as a parole violator on March 30, 1948 (after release from Bikers Island sentence) ....... 3 5 27
The Second Sentence — March 9, 1942 (for a maximum of ten years)
L. Began serving second (Sing Sing) sentence ........................... 1943 3 11
M. Maximum term.................... 10 0 0
N. Expiration date at time of sentence.. 1953 3 10*
O. Jail time allowed................... 0 1 19
P. Adjusted maximum expiration date, as fixed by board on July 12, 1946 (parole to commence August 8, 1946) .......................... 1953 1 21**
Q. Declared delinquent (convicted March 18, 1947, and sentenced to Bikers Island for indeterminate term)... 1947 1 13
B. Unexpired term when returned to Sing Sing as a parole violator on March 30, 1948 (after release from Bikers Island sentence).......... 6 0 8 CONSOLIDATED COMPUTATION
S. Beturned to Sing Sing for violation of August 8, 1946 parole............ 1948 3 30
T. Unexpired portion of first sentence... 3 5 27
U. Unexpired portion of second sentence 6 0 8
V. Maximum expiration date of both sentences, as fixed by board on September 27, 1950 (parole to commence October 24, 1950).......... 1957 10 5
FOOTNOTES TO APPENDIX
* Inmate is credited with full day for portion thereof served.
** January 22,1953, is the date appearing on the parole release paper and therefore in the opinion. The one day variance in computation has no effect upon the determination of this writ.
These parenthetical capital letters — to be found from time to time throughout the opinion — refer to specific lines in the appendix.
This is the date as computed by the board and noted on Kenny’s parole release paper dated September 27, 1950. Because of the later commission of an additional crime, Kenny was again declared delinquent as of May 21, 1954, was convicted of unlawful entry and was sentenced on July 27, 1954, for a term of one year at Bikers Island. This, of course, would extend the Tna-yimmu expiration date here mentioned.
