People ex rel. Johnson v. Morhous

267 A.D. 932, 46 N.Y.S.2d 880, 1944 N.Y. App. Div. LEXIS 5571

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1944
• Status: Published

Opinion

Appeal by relator from an order dismissing a writ of habeas corpus. On October 8, 1930, he was convicted of a felony and sentenced to imprisonment for an indeterminate term of not less than five years nor more than ten years. He was paroled on May 15, 1934. On October 13, 1935, he was sentenced as a second offender for a crime committed on June 20, 1935, to serve five years. He asserts that he should be credited with the time he was on parole before being declared delinquent (May 15, 1934, to June 6, 1935) and cites People ex rel. Sormberger v. Martin (266 App. Div. 48). Section 217 of the Prison Law (L. 1909, eh. 47) was in effect when Sormberger was convicted and first released on parole. It required á delinquent to serve the portion of his sentence which was unexpired “ at the time such delinquency is declared”. This was changed (L. 1928, ch. 485, eff. July 1, 1928; Correction Law, § 219) so that the delinquent parolee is required to serve the portion of his sentence unexpired “ from the time of such release on parole ”. The order, should be affirmed. Order affirmed, without costs. Hill, P. J., Bliss, Heffernan and Schenck, JJ., concur; Brewster, J., taking no part.