293 N.Y. 469 | NY | 1944
In 1930 relator was sentenced by the County Court of Erie County to serve a definite ten-year sentence in Auburn State Prison. In 1935, after he had been in confinement under that sentence for exactly five years, he was released therefrom and came under the supervision of the State Board of Parole. At the time of that release and before leaving prison he signed a "parole agreement", one of the provisions of which we shall discuss hereafter. In April, 1939, relator was "declared delinquent" as of March 8, 1939, by the Board of Parole, because of his arrest on the latter date, by United States authorities. That arrest was pursuant to an indictment, found against him by a Grand Jury in a Federal District Court in Tennessee charging crimes committed during the period while he was on parole. The Federal indictment charged relator, and others, with the crime of using the United States mails to defraud, and, in another count, with the crime of conspiring so to use the mails. Both those crimes are felonies under the laws of the United States. (U.S. Code, tit. 18, §§ 88, 338 and 541.) Relator pleaded guilty to both counts of the indictment, was sentenced to a term of imprisonment and a fine, and was thereupon confined in a Federal penitentiary under that sentence until December 20, 1941. On that date he was released from the Federal penitentiary and returned to one of our State prisons to serve whatever part remained unexecuted of the sentence imposed on him by the County Court in 1930. Relator claims, as against that ten-year sentence, credit not only for the five years served by him in State prison before 1935, but also for the period of *472 three years, four months and eighteen days which elapsed while he was under supervision of the Parole Board before his delinquency. On that basis he computes that when he was returned to State prison in 1941, he had only one year, seven months and thirteen days left to serve and so should have been released in August, 1943. Refused such release, he brought this proceeding. He was defeated in both courts below, and we granted him leave to appeal to this court.
The State has, so far successfully, urged that relator, by his 1939 delinquency which consisted of his Federal conviction, forfeited, and lost all credit for, the time during which he was under parole supervision. As justifying such a forfeiture, the State points to the agreement signed by relator at the time of his release in 1935. In that agreement it is, among other things, stipulated that if relator should, while on parole, commit and be convicted of "a felony, either in New York State or any other state," he would be compelled to serve in a State prison, "the portion remaining" of his original ten-year sentence "from the time of such release on parole to the expiration" of that ten-year sentence. The question to be decided, the parties here agree, is as to the meaning and application to these facts, and effect, of the language of that agreement: "a felony, either in New York State or any other state".
The record does not show clearly by whose authority, under what particular law or for what reason relator was released in 1935, nor by whose authority or under what law there was presented to him the "parole agreement" above quoted from. Both the petition and answer in this proceeding assert that he was "released on parole by the State Parole Board". The State's brief on this appeal tells us that relator was "released on parole following a reduction in his sentence by the Governor pursuant to Section 242 of the Correction Law." That section directs the Governor, when reducing a sentence, to annex certain conditions. One of these mandated conditions under that statute is that if the released prisoner, during the remainder of the term for which he was sentenced, shall be convicted of a felony within this State or of a "crime under the laws of any other state, government, or country, which if committed within this state would be a felony" he shall forfeit all credit for the time during which he is under parole supervision. That section *473
242 was in effect when relator was released in 1935, but it does not necessarily follow that it was, or could be, authority for the imposition of the condition found in relator's "parole agreement" (see People ex rel. Ingenito v. Warden, etc.,Auburn Prison,
We are not holding, however, that either old section 243 of the Correction Law, in effect in 1930, or new section 242, in effect in 1935, applies to the situation shown in this record. Both those sections describe the conditions to be imposed by theGovernor who alone has the power to reduce definite or "straight" sentences. *474 The Parole Board's powers as to ordering reductions and releases have to do only with indeterminate sentences. (See Correction Law, §§ 223, 241.) Prisoners released by the Governor are, upon such release, turned over to the Parole Board for supervision (Correction Law, §§ 241 and 242), but the Parole Board does not control such releases or the conditions thereof. Applying the presumption of regularity, however, we think it a fair solution of this difficulty, or seeming difficulty, to assume that the condition imposed on relator in the 1935 agreement, was so imposed by act or authorization of the Governor.
A commutation by the Governor may be on a condition that the commutation granted by the Governor will be forfeited for misbehavior. (See People v. Burns, 77 Hun 92, 95, affd. on opinion below
The Atkins case (
The State says, however, and the lower courts have held in this case, that People v. Fury (
This relator did, of course, violate other terms of his 1935 agreement when he fell afoul of the Federal criminal laws and so was properly returned to State prison to serve the remainder of his sentence. But he did not violate the only provision of that agreement which called for a forfeiture of time on parole, for its violation. Thus he did not forfeit that parole time and should have been given credit for it when he was returned to prison in this State. With such a credit, his ten-year sentence was fully served in August, 1943. He should have been released then, and must be released now.
The orders should be reversed, the writ sustained, and the Warden ordered to release relator from custody.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY and THACHER, JJ., concur.
Orders reversed, etc. *476