Dixon v. Chairman of New York State Board of Parole

58 A.D.2d 933, 397 N.Y.S.2d 20, 1977 N.Y. App. Div. LEXIS 13134

Opinion

Appeal from a judgment of the Supreme Court at Special Term, entered January 24, 1977, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78. The issue presented by the parties to this proceeding is whether or not the respondent pursuant to section 75.10 of the Penal Law may add delinquent time of a prior reformatory sentence to a subsequent maximum expiration date imposed for a crime committed while on parole. On June 30, 1977 the Court of Appeals affirmed the case of Matter of Balmer v New York State Bd. of Parole (42 NY2d 939, affg 54 AD2d 979). In the Balmer case the Appellate Division, Second Department, expressly found that such an addition of reformatory time would violate a convict’s right to due process. As a result of the Balmer case, we perceive no alternative to granting the relief requested. Judgment reversed, on the law, without costs, and respondent directed to remove the one year of reformatory delinquent time which it has added to petitioner’s maximum expiration date. Sweeney, J. P., Kane, Main, Larkin and Herlihy, JJ., concur.