236 A.D. 201 | N.Y. App. Div. | 1932
Respondent was a third offender. He served a portion of his first sentence, was paroled before its expiration and was subsequently declared delinquent and charged with the unexpired maximum on such first sentence when returned to the prison under a two-year new sentence for another crime on October 14, 1924. The Board of Parole permitted him to commence the second sentence as of December 5, 1925. He was released under the terms of commutation and parole on such second sentence on May 10, 1927, and the full expiration of the said second sentence would have been on October 27, 1927. He committed the crime of grand larceny, second degree, on July 28, 1927, but was not convicted until November 21, 1927, when he apparently pleaded guilty and was returned to prison under a definite sentence of five years with an allowance of sixty-six days’ jail time served prior to conviction and sentence. Thereupon he was improperly charged with forfeited commutation of five months and eighteen days on his second sentence (the period between May 10, 1927, and October 27, 1927), it having been a condition of the Governor’s commutation thereof that if convicted of a felony between the date of his release-by reason thereof and the full expiration of his sentence, committed in the interval as aforesaid, he would be required to serve the commuted time in addition to any other sentence which might be imposed. (Correction Law, § 243, as amd. by Laws of 1921, chap. 567.) The charge with forfeited commutation in this case was improper because the conviction for the third offense was subsequent to the full expiration of his second sentence. The Special Term apparently discharged the prisoner on that ground and he would have been entitled to discharge from prison if it were not for the fact that the respondent had not yet served the full sentence of five years for
The order discharging respondent should be reversed and the respondent remanded to the custody of the warden of Great Meadow Prison.
All concur; McNamee, J., not voting.
Order reversed on the law and respondent remanded to the custody of the warden of Great Meadow Prison.