Flumer v. State Board of Parole

Appellate Division of the Supreme Court of New York

Flumer v. State Board of Parole

79 A.D.2d 605, 433 N.Y.S.2d 607, 1980 N.Y. App. Div. LEXIS 13946

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 1, 1980

StatusPublished

This text of 79 A.D.2d 605 (Flumer v. State Board of Parole) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flumer v. State Board of Parole, 79 A.D.2d 605, 433 N.Y.S.2d 607, 1980 N.Y. App. Div. LEXIS 13946 (N.Y. Ct. App. 1980).

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Opinion

In a proceeding pursuant to CPLR article 78, inter alia, to compel the appellants to restore petitioner to parole status, the appeal, as limited by the appellants brief, is from so much of a judgment of the Supreme Court, Westchester County, dated August 30, 1978, as determined the maximum expiration date of petitioner’s subsequent concurrent sentence to be in 1984. Judgment modified, on the law, by deleting therefrom the provision determining the maximum expiration date of petitioner’s subsequent concurrent sentence to be in 1984 and substituting therefor a provision determining the maximum expiration date to be November 9, 1996 with a credit of 274 days to be deducted from such date for time the petitioner spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence (Penal Law, § 70.30, subd 3). As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. As Special Term properly determined, by reason of appellants’ failure to provide a prompt parole violation hearing, the petitioner is entitled to be restored to parole status on his prior sentenfce of 20 years to life imposed in 1947 (Matter of Piersma v Henderson, 44 NY2d 982). However, such parole status shall not commence until the petitioner’s subsequent concurrent sentence of 10 to 20 years, imposed in 1976, has been satisfied by the discharge of such term of imprisonment (see People ex rel. Messner v Smith, 74 AD2d 735, mot for lv to app den 49 NY2d 707; People ex rel. Anderson v Harris, 78 AD2d 666; Matter of Gooden v Hammock, 78 AD2d 639). In computing the maximum expiration date of the term of imprisonment of such subsequent concurrent sentence, Special Term improperly failed to treat the commencement of such term as the date when the petitioner was received in a State correctional facility under such sentence (see Penal Law, § 70.30, subd 1, par [a]). Lazer, J. P., Mangano, Gibbons and Gulotta, JJ., concur.

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In a proceeding pursuant to CPLR article 78, inter alia, to compel the appellants to restore petitioner to parole status, the appeal, as limited by the appellants brief, is from so much of a judgment of the Supreme Court, Westchester County, dated August 30, 1978, as determined the maximum expiration date of petitioner’s subsequent concurrent sentence to be in 1984. Judgment modified, on the law, by deleting therefrom the provision determining the maximum expiration date of petitioner’s subsequent concurrent sentence to be in 1984 and substituting therefor a provision determining the maximum expiration date to be November 9, 1996 with a credit of 274 days to be deducted from such date for time the petitioner spent in custody prior to the commencement of such sentence as a result of the charge that culminated in the sentence (Penal Law, § 70.30, subd 3). As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. As Special Term properly determined, by reason of appellants’ failure to provide a prompt parole violation hearing, the petitioner is entitled to be restored to parole status on his prior sentenfce of 20 years to life imposed in 1947 (Matter of Piersma v Henderson, 44 NY2d 982). However, such parole status shall not commence until the petitioner’s subsequent concurrent sentence of 10 to 20 years, imposed in 1976, has been satisfied by the discharge of such term of imprisonment (see People ex rel. Messner v Smith, 74 AD2d 735, mot for lv to app den 49 NY2d 707; People ex rel. Anderson v Harris, 78 AD2d 666; Matter of Gooden v Hammock, 78 AD2d 639). In computing the maximum expiration date of the term of imprisonment of such subsequent concurrent sentence, Special Term improperly failed to treat the commencement of such term as the date when the petitioner was received in a State correctional facility under such sentence (see Penal Law, § 70.30, subd 1, par [a]). Lazer, J. P., Mangano, Gibbons and Gulotta, JJ., concur.

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Bluebook (online)

79 A.D.2d 605, 433 N.Y.S.2d 607, 1980 N.Y. App. Div. LEXIS 13946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flumer-v-state-board-of-parole-nyappdiv-1980.

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