People ex rel. Sutton v. Murphy
252 A.D. 815
N.Y. App. Div.
1937
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Defendant (relator) is imprisoned in Clinton Prison on a life sentence as a fourth offender, under the provisions of section 1942 of the Penal Law. He appeals from an order which denies his release, and which dismissed a writ of habeas corpus. He is presently imprisoned under a conviction on April 30, 1927, for the crime of “ escaping from prison upon confinement for a felony.” He was sentenced for the term of his natural life. He had been previously convicted, June 26,1919, in the Court of Special Sessions, Hudson County, New Jersey, for “ robbery ” and sentenced to a New Jersey State reformatory. On October 3,1924, he was convicted of two crimes in the County Court of Albany, New York, “ third degree burglary,” for which he was sentenced to serve a term of two years, and “ second degree grand larceny,” for which he was sentenced to serve a term of five years. His release is sought under section 1699 of the Penal Law, enacted by chapter 479 of the Laws of 1932, in effect March 28, 1932. It enacts that “ the provisions of sections nineteen hundred forty-one and nineteen hundred forty-two of this chapter shall not apply to such a conviction.” The limitation applies to article 162 of the Penal Law, which includes, inter alia, escape by a prisoner. This statute, enacted four years after petitioner’s conviction, *816does not apply thereto. The amendment to section 1942 (Laws of 1936, chap. 328) which provides: “ Conviction of two or more crimes charged in separate counts of one indictment or information, or in two or more indictments or informations consolidated for trial, shall be deemed to be only one conviction,” does not apply to this sentence of April 30, 1927. The prisoner’s remedy is not to the courts but by executive clemency. Order unanimously affirmed. Present —• Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ.