People ex rel. Maloney v. Warden of New York County Penitentiary

132 Misc. 63 | N.Y. Sup. Ct. | 1928

Sherman, J.

The situation in this case appears to be that the Parole Board does not feel bound by the amendment to section 2193 of the Penal Law (Laws of 1919, chap. 410), which went into effect in the year 1919, but rests its views solely upon a construction of chapter 579 of the Laws of 1915.^* If the petitioner is given the benefit of the forty days, which concededly he served in jail prior to the date of sentence, then the time fixed by that sentence has matured, and the petitioner is entitled to be discharged. It is my judgment that chapter 579 of the Laws of 1915 must be deemed to have been amended by the legislation of 1919 and that the Parole Board had no right to act in disregard of the amendment of 1919 to section 2193 of the Penal Law. It further appears that the judge of the Court of General Sessions, in conformity with the provisions of the 1919 statute, indorsed upon the sentence his certificate that from an examination of the records of the court and the statements of the defendant the defendant (the present petitioner) was in prison or jail forty days before the day of sentence. The day of sentence was May 8, 1925; consequently, if those forty days are taken into consideration, the three-year sentence has expired. Under these circumstances the writ must be sustained and the prisoner discharged.

* Parole Commission Law.