Appeal by relator from an *707order of the Washington County Court, which dismissed a writ of habeas corpus. Relator was convicted of grand larceny in the second degree on April 25, 1956 and sentenced to Elmira Reformatory for an indefinite term of five years maximum. He was released on parole on December 18, 1957. On September 6, 1958, while on parole, he was arrested in Nassau County on charges of burglary, third degree, and petit larceny. On September 9, 1958, the Parole Board declared relator delinquent and lodged a return warrant against him. He was held in the Nassau County Jail on the new charges until August 5, 1959, when he was convicted of burglary, third degree, after a jury trial. A sentence of 5 to 10 years was imposed, but the execution thereof suspended. Relator’s sole contention is that he is entitled to credit on his original sentence for the time he was held in the Nassau County Jail awaiting trial on the new charges. Subdivision 3 of section 2193 of the Penal Law provides for such credit only if the charge of the new crime “ shall ultimately be dismissed or he is acquitted thereof”. Here the charge was not dismissed and relator was not acquitted. On the contrary he was convicted, and it follows that subdivision 3 of section 2193 has no application. Order unanimously affirmed, without costs.
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