Mulligan v. Murphy

19 A.D.2d 218, 241 N.Y.S.2d 529, 1963 N.Y. App. Div. LEXIS 3382

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1963
• Status: Published

Opinions

Williams, P. J.

The question is whether section 219 of the Correction Law as added by chapter 473 of the Laws of 1960, effective July 1,1960, applies beneficially to the petitioner. The chapter mitigates the treatment of parolees who are convicted of felonies committed while on parole. If petitioner is included within the new chapter, he will receive the benefit of having the computation of his delinquent time commence as of the date of delinquency rather than the date of parole. In other words, he will receive credit for his parole time up to delinquency with the result that he would have served out the full maximum of his first sentence on February 28,1959. Since that time he would have been serving under a new sentence of 5 to 10 years imposed because of a felony committed while on parole.

■Having stated the problem, a consideration of the undisputed facts will be helpful. On April 18,1949 petitioner was sentenced to 2 to 10 years. With a credit of 138 days jail time his maximum term was reduced to 9 years, 7 months and 12 days, to expire November 30,1958. He was released on parole on May 16, 1950 owing 8 years, 6 months and 14 days on his maximum. He was declared delinquent on August 30, 1955 because of the commission of a felony and was returned to prison. Under former section 219 he was required to serve as delinquent time the balance of his sentence computed from the date of his release on parole. Therefore, on his return to prison on November 30,1955 he owed 8 years, 6 months and 14 days of delinquent time which would not have been completed until June 14, 1964. If the new basis of computation provided in section 219 is applied to this prisoner, he would have only owed delinquent time amounting to 3 years and 3 months. Thus his maximum sentence would have expired on February 28,1959. Petitioner contends it would have expired on November 30, 1958, the original expiration date, but this would not allow for the interruption of his sentence from the date of delinquency until his return to prison. The Warden has computed his second sentence as commencing on July 1, 1960, the effective date of chapter 473. The court below accepted petitioner’s contentions without an opinion and directed the Warden to recompute the petitioner’s sentence on the basis that he commenced service of the new sentence on March 1, 1959.

The petitioner’s contention that he is within the scope of the beneficial provisions of the new section 219 is based upon the section 5 of chapter 473 which provides: “The amendments made by this act shall apply to all prisoners serving delinquent time on the effective date of this act for a felony committed in this state or for a crime committed under the laws of another state, government, or country which if committed in this state would be a felony. Such amendments shall not apply to prisoners who upon the effective date of this act have completed service of such delinquent time, nor to prisoners who upon the effective date of this act are serving delinquent time concurrently with a term imposed for a felony committed on parole.” (Emphasis supplied.)

The question here presented has not previously been considered by any court of this State. There is little precedent that is helpful in construing the statute except cases referring to retroactivity in general. Most of these, however, have no particular application to the problem raised by this petitioner. We must determine this case from the specific intent which we find to be evident in the chapter itself, that the section shall apply for the benefit of petitioner.

Section 219 must be read in conjunction with section 218. Both were added by chapter 485 of the Laws of 1928. Section 218, applicable to prisoners who violated parole by committing an act not amounting to a felony, provided, as it was originally enacted: ‘ ‘ Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his parole, the board of parole at its next meeting shall declare such prisoner to be delinquent and time owed shall date from such delinquency <:= * * TPe 0f parole * * * may, if it sees fit, require such prisoner to serve out in prison the balance of the maximum term for which he was originally sentenced calculated from the date of delinquency or such part thereof as it may determine, or impose such punishment as it deems proper, subject to the provisions of the next section. ” (Emphasis supplied.) The original section 219 provided for harsher treatment for prisoners who committed felonies while on parole: “If any prisoner be convicted of a felony committed while on parole, he shall, in addition to the sentence which may be imposed for such felony, and before beginning to serve such sentence, be compelled to serve in state’s prison the portion remaining of the maximum term of the sentence on which he was released on parole from the time of such release on parole to the expiration of such maximum. No such person shall be eligible for any further parole at any time. (Emphasis supplied.) It will be noted that parole violators who fell within section 218 remained within the jurisdiction of the Parole Board and were compelled to serve only the balance owed on their sentences as of the date of delinquency. Those who committed felonies, however, were permanently removed from the Parole Board’s jurisdiction by section 219 and were compelled to serve out the balance of the sentence remaining to be served as of the date of the original release on parole. Time spent on parole was not credited as time served on the sentence.

Section 218 has been continued in substantially the same form to the present time, while section 219 has undergone significant changes. In 1939 it was relaxed somewhat to provide that in the case of a parolee from the Elmira Reformatory who committed a felony “ the board of parole may in its discretion require him to serve such portion remaining of the maximum term of his sentence as the board shall deem appropriate.” (L. 1939, ch. 753.) There was no similar provision for persons paroled from prisons other than Elmira. In 1945, when the section was again amended to apply only to persons on parole from a State prison, this quoted clause was deleted (L. 1945, ch. 678, § 4).

The first step toward ameliorating section 219 as to felons came in chapter 518 of the Laws of 1954, which added a provision that: “ if such prisoner has served five years of delinquent time under this section, he shall, upon certification of the prison board, become subject to the jurisdiction of the board of parole which may permit such prisoner to serve a portion of his remaining delinquent time concurrently with the new sentence imposed upon him.” (Emphasis supplied.) In 1957, the clause beginning “ which may permit ” was deleted and the words “ as to his remaining delinquent time ” added (L. 1957, ch. 436).

Chapter 473 of the Laws of 1960, effective July 1, 1960, with which we are directly concerned on this appeal, repealed former section 219 in its entirety and added a new section bearing the same number. The relevant portion provides: “If any person be convicted in this state of a crime or offense committed while on parole from an institution under the jurisdiction of the commissioner of correction and if he be sentenced therefor to such an institution he may, in addition to the sentence which may be imposed for such crime or offense, and before beginning to serve such sentence, be compelled to serve in such an institution, the portion remaining of the maximum term of the sentence on which he was released on parole calculated as provided in section two hundred eighteen of this article.” (Emphasis supplied.) That chapter also continued section 218, which in its present form provides, insofar as it is relevant to the present case: ‘ ‘ Whenever there is reasonable cause to believe that a prisoner who has been paroled by the state board of parole, has violated his parole, such board of parole as soon as practicable shall declare such prisoner to be delinquent and such declaration of delinquency shall interrupt such prisoner’s sentence as of the date of such delinquency * * *. Such interruption shall continue until the return of such prisoner to an institution under the jurisdiction of the commissioner of correction. Upon such return time owed shall date from such delinquency (Emphasis supplied.)

The significant change brought about by this enactment was the abolition of the former distinction between felonies committed while on parole and lesser parole violations. Thus parolees committing felonies receive the same benefits under section 218 as other parole violators because of the substitution of the words “ crime or offense ” for the former word “ felony ”. Both may, in the discretion of the Parole Board, be compelled to serve out the maximum due on the original sentence before commencing service of the new sentence, but both now are subject to the Parole Board’s jurisdiction. Of special significance is the fact that the parolee who commits a felony is now brought within the Parole Board’s jurisdiction at an earlier date by means of the new and more favorable calculation of the time due to be served on his maximum sentence.

The development of section 219 is consistent with modern views with regard to penology. In its original form the section directed that a prisoner coming within its purview ‘1 shall ’ ’ be compelled to serve the balance of his original term before commencing service of his new sentence. Of course, in the absence of ameliorating or qualifying language or showing of another purpose, the word “ shall ” is deemed to be mandatory. Therefore, as the section formerly read, it would have been mandatory for such a prisoner to serve out the portion remaining of the maximum term of his sentence from the time of release on parole to the expiration of the maximum. The amendment of the section in 1954 was definitely ameliorative in that it gave a prisoner the benefit of possible concurrent incarceration after he had served five years of delinquent time from the date of his release on parole. Thus he might gain time credit on his new sentence, so that, in the case of an unusually long maximum on the first sentence, he could be released on parole as soon as he became eligible for parole under his second sentence.

The enactment of the new section 219 brought further mitigation of the harsh treatment formerly accorded parole violators and brought this section of the law into harmony with the modern penological approach. Its purpose is explained in a memorandum presented by the Division of Parole at the time of its introduction (no official citation). The arguments offered in support of the bill state that modern penology supports the premise that individual treatment be permitted in each case and that this was not possible under the mandatory provisions of the former section. Further, it is said that under the former law maintenance of institutional discipline was more difficult as to inmates serving mandatory delinquent time with no opportunity to shorten the period through good conduct. The penalties that could have been imposed upon a prisoner under the former section are recounted as well as the forfeitures that a prisoner might incur. Attention is called to the inequity existing in the fact that a prisoner owing less than five years would be required to serve it all while one serving more than five years could be paroled after five years. In other words, the modern trend as demonstrated and argued in the memorandum supporting the bill and in the section itself, particularly read in connection with section 218, stresses individual treatment and reward for good conduct as exemplified by calculation of delinquent time from the date of delinquency rather than from the date of parole.

We must consider whether this prisoner comes within the scope of section 5 of the new chapter. In our opinion he does. As we have said, that section provides, “ The amendments made by this act shall apply to all prisoners serving delinquent time on the effective date of this act ”. On the effective date of the section he was a prisoner serving delinquent time for a felony which was committed in this State. He had not completed his service under the old method of computation, nor had he been permitted to serve his delinquent time concurrently with the new term under the provisions of the section as it was amended by the Laws of 1954. The exclusionary provisions of the last sentence of section 5 do not take the beneficial aspects of the section from this prisoner because he had not completed service of his delinquent time based on the old method of computation nor was he serving delinquent time concurrently with a term imposed for a felony committed on parole. It might be argued that if the new method of calculation of delinquent time is applied to him he would not, on the effective date of the act, have been serving delinquent time because if his time were calculated on the basis of the date of delinquency he would have served out the balance of his maximum term. However, his time was not so computed, and the Correction Department will not so compute it today except by mandate of this court, so that on the effective date of the amendment, he was being held as a parole violator who was serving delinquent time.

The Commissioner of Correction, for some puzzling reasons not in any way authorized by the language or intent of the new section, decided that his maximum sentence ended as of the effective date of the new section. This gave him only partial benefits under the amendment although recognizing that he came within the beneficial aspects and purposes thereof. We see no possible basis for such a computation. It cannot be found in the statute by either specific language, implication or fair intendment. The only argument that seems to have been made as to the reason that this was done is that any other construction would cause a great deal of additional bookkeeping. This is a most unusual reason for denying a prisoner his rights under statutes intended for his benefit. Furthermore, the cut-off period was determined by the Commissioner of Correction (not the Parole Board) arbitrarily and to apply to all, not individual, cases as the amendment contemplates.

We agree that a statute should not be construed to be effective retroactively unless its language expressly or by fair implication demands such construction. However, the language of the present law expressly contemplates retroactivity.

Our reasoning is in line with the philosophy of People v. Oliver (1 N Y 2d 152). In that case the defendant, a child under 16 years of age, was charged with murder in the first degree. The crime occurred when he was only 14 years old and before section 486 of the Penal Law had been amended. Before the amendment, a child of 7 and under 16 could be prosecuted for murder or any other crime punishable by death or life imprisonment. After the amendment, a child under the age of 16 could be subjected only to treatment as a “ delinquent ”, and not to punishment as a criminal. In other words, the effect of the modification was that no child of 15 or less could be charged with or prosecuted for any crime even though it be punishable by death. The court held that since the amendment was an ameliorative one there was no constitutional problem but the question for determination was that of legislative design. After considering the general object of the legislation and a memorandum of the Glovernor approving the bill indicating that the statute’s provisions should be applied to all offenders who had not been tried and sentenced before its effective date, the court reversed the judgment of conviction for murder in the first degree and dismissed the indictment. The case contains an excellent discussion of the problem before us as to the application of an amended statute to a prior situation. At page 163, it is said: ‘ ‘ AVhenever the Legislature alters existing law, a certain measure of inequality is bound to ensue. Where the change is ameliorative and reflects a judgment that the earlier law was unduly harsh or unjust, a court should not withhold the benefits of the new statute to one tried after its passage, merely because it is powerless to extend them to those already convicted.”

Any beneficial retroactive change is bound to create some inequities or anomalies and the present amendment if given a progressive, liberal interpretation may well do so. However, as observed in the Oliver case, that is no reason to deny its benefits to one who clearly comes within its remedial scope.

The order should be affirmed.