People ex rel. Lyons v. Morhous

281 A.D. 924, 119 N.Y.S.2d 782, 1953 N.Y. App. Div. LEXIS 3775

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1953
• Status: Published

Opinion

—■ Relator appeals from an order of Washington County Court dismissing a writ of habeas corpus. He was sentenced in Kings County Court March 7, 1938, for a term of five to fifteen years for robbery, second degree. On May 21,1945, the Division of Parole executed a waiver of active supervision during the period of his active service in the armed forces of the United States. Thereupon relator entered the military service in the United States Air Force. On return of the writ he testified that he went absent without leave about November or December, 1947, and so continued until he was returned to Sing Sing Prison as a parole violator. The Parole Board found him to have been delinquent since January 1,1946, and owing from February 2,1952, six years, eleven months and eighteen days on his maximum sentence. The military authorities have filed a detainer against him upon his release from prison. Relator contends that, as he has not been discharged from the army, he is still in active service and that the Parole Board had no jurisdiction to declare him delinquent or to hold and imprison him. The jurisdiction o£ the Parole Board over relator was not suspended. Active supervision only was suspended "during the period of his active service in the armed forces of the United States”. Whether absent without leave or a deserter is not important. When picked up as a parole violator, he was posing as a civilian, was at work, and was not in active service. The act of the Parole Board in determining parole delinquency was a legal act and not reviewable on habeas corpus. Order unanimously affirmed, without costs. Present — Poster, P. J., Bergan, Coon, Halpern and Imrie, JJ. [See post, p. 1049.]