| N.Y. App. Div. | Mar 9, 1938
Appeal by petitioner from a denial of mandamus. The petition asked that the warden of Great Meadow Prison be required to certify under section 232 of the Correction Law that petitioner was a prisoner entitled to be released on parole in February, 1937. The warden asserts that petitioner began to serve a five-year sentence for robbery on December 4, 1935, and that February 20, 1939, is the earliest possible date when he would be entitled to parole. Petitioner was received at Sing Sing Prison (he has now been transferred to Great Meadow) on December 4, 1933. The first two years that he was in prison were served, according to the warden’s contention, as a parole delinquent, the petitioner having been sentenced to Elmira Beformatory on April 12, 1930, for a term of ten years, paroled on June 29, 1932, and declared delinquent on September 23, 1933, because of the robbery charge upon which he was later convicted and the sentence for which he is now serving. When the Parole Board found him to be delinquent he was required to serve six years, six months and eighteen days, the balance of his ten-year term in Elmira. This was later reduced by the Parole Board to two years. It was proper to transfer the prisoner from Elmira Beformatory to a State prison. (Correction Law, § 293.) The statute requires a person under sentence for a felony who afterwards commits another felony to serve his first term before beginning his second. (Penal Law, § 2190, subd. 2.) Order unanimously affirmed. Present — Hill, P. J., MeNamee, Crapser, Bliss and Heffernan, JJ.