Layne v. New York State Board of Parole

New York Supreme Court

Layne v. New York State Board of Parole

75 Misc. 2d 658, 348 N.Y.S.2d 999, 1973 N.Y. Misc. LEXIS 1299

DecidedSeptember 5, 1973

StatusPublished

This text of 75 Misc. 2d 658 (Layne v. New York State Board of Parole) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Layne v. New York State Board of Parole, 75 Misc. 2d 658, 348 N.Y.S.2d 999, 1973 N.Y. Misc. LEXIS 1299 (N.Y. Super. Ct. 1973).

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Opinion

John L. Larkin, J.

The petitioner, appearing pro se, seeks by article 78 a writ of mandamus requiring the respondents to give him credit for time spent in jail before sentencing, such credit to be extended against his minimum period of imprisonment.

The petitioner prisoner was sentenced for the crime of manslaughter in the first degree to an indeterminate sentence of imprisonment which shall have a maximum term of 10 years. Pursuant to the Correction Law (§ 212, subd. 2), the petitioner met with the October, 1972 Parole Board, which determined his minimum term of imprisonment to be four years. The petitioner is not entitled to jail time credit against his minimum sentence when that sentence is set by the Parole Board (Penal Law, § 70.30, subd. 3). The petitioner relies on the language of subdivision 2 of section 212 of the Correction Law, which provides that the: “ determination [of the Parole Board, of the minimum sentence] shall have the same force and effect as a minimum period fixed by a court ”.

There are, of course, significant differences between minimum sentencing by a court and that by a board, the most significant being that the board may, from time to time, reduce such minimum period (Correction Law, § 212, subd. 2) while the [659]*659court cannot (Walker v. Oswald, 449 F. 2d 481). Jail time is credited when the minimum is fixed by the court, but is not credited when the minimum is fixed by the Parole Board.

The petition is, in all respects, dismissed.

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John L. Larkin, J.

The petitioner, appearing pro se, seeks by article 78 a writ of mandamus requiring the respondents to give him credit for time spent in jail before sentencing, such credit to be extended against his minimum period of imprisonment.

The petitioner prisoner was sentenced for the crime of manslaughter in the first degree to an indeterminate sentence of imprisonment which shall have a maximum term of 10 years. Pursuant to the Correction Law (§ 212, subd. 2), the petitioner met with the October, 1972 Parole Board, which determined his minimum term of imprisonment to be four years. The petitioner is not entitled to jail time credit against his minimum sentence when that sentence is set by the Parole Board (Penal Law, § 70.30, subd. 3). The petitioner relies on the language of subdivision 2 of section 212 of the Correction Law, which provides that the: “ determination [of the Parole Board, of the minimum sentence] shall have the same force and effect as a minimum period fixed by a court ”.

There are, of course, significant differences between minimum sentencing by a court and that by a board, the most significant being that the board may, from time to time, reduce such minimum period (Correction Law, § 212, subd. 2) while the [659]*659court cannot (Walker v. Oswald, 449 F. 2d 481). Jail time is credited when the minimum is fixed by the court, but is not credited when the minimum is fixed by the Parole Board.

The petition is, in all respects, dismissed.

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Bluebook (online)

75 Misc. 2d 658, 348 N.Y.S.2d 999, 1973 N.Y. Misc. LEXIS 1299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/layne-v-new-york-state-board-of-parole-nysupct-1973.

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