People ex rel. Allen v. Dalsheim

New York Court of Appeals

People ex rel. Allen v. Dalsheim

401 N.E.2d 391, 48 N.Y.2d 971, 425 N.Y.S.2d 280, 1979 N.Y. LEXIS 2564

CourtNew York Court of Appeals

DecidedDecember 19, 1979

StatusPublished

Cited by3 cases

This text of 401 N.E.2d 391 (People ex rel. Allen v. Dalsheim) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Allen v. Dalsheim, 401 N.E.2d 391, 48 N.Y.2d 971, 425 N.Y.S.2d 280, 1979 N.Y. LEXIS 2564 (N.Y. 1979).

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Opinion

OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

Respondent was sentenced in 1975 to serve a maximum term of four years, with an expiration date of August 28, 1978. While on parole, he was declared a delinquent and was not returned to custody until more than four months later. A final parole revocation hearing not having been held promptly, however, the Appellate Division ordered that respondent’s petition for a writ of habeas corpus be granted and that he be returned to parole. Since a parolee continues to serve his sentence while in compliance with the terms of his release, respondent’s maximum expiration date could have been extended no more than four months by his delinquency (Penal Law, § 70.40, subd 1, par [a]; subd 3, par [a]). That date having long since passed, the superintendent’s appeal is moot (cf. People ex rel. Higgs v Superintendent Arthur Kill Correctional Facility, 46 NY2d 884; People ex rel. Christian v Vincent, 49 AD2d 914).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Appeal dismissed, without costs, in a memorandum.

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OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

Respondent was sentenced in 1975 to serve a maximum term of four years, with an expiration date of August 28, 1978. While on parole, he was declared a delinquent and was not returned to custody until more than four months later. A final parole revocation hearing not having been held promptly, however, the Appellate Division ordered that respondent’s petition for a writ of habeas corpus be granted and that he be returned to parole. Since a parolee continues to serve his sentence while in compliance with the terms of his release, respondent’s maximum expiration date could have been extended no more than four months by his delinquency (Penal Law, § 70.40, subd 1, par [a]; subd 3, par [a]). That date having long since passed, the superintendent’s appeal is moot (cf. People ex rel. Higgs v Superintendent Arthur Kill Correctional Facility, 46 NY2d 884; People ex rel. Christian v Vincent, 49 AD2d 914).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Appeal dismissed, without costs, in a memorandum.

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Bluebook (online)

401 N.E.2d 391, 48 N.Y.2d 971, 425 N.Y.S.2d 280, 1979 N.Y. LEXIS 2564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-allen-v-dalsheim-ny-1979.

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