People ex rel. Pinchback v. Warden of the Penitentiary

184 A.D. 777, 37 N.Y. Crim. 165, 172 N.Y.S. 382, 1918 N.Y. App. Div. LEXIS 6599

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1918
• Status: Published

Opinion

Page, J.:

The relator was convicted on a plea of guilty for a violation of section 1140 of" the Penal Law which' that section states to be a misdemeanor, but does not prescribe the punishment.

The appellant claims, as no other punishment is prescribed

in the Penal Law, that he could only be sentenced to imprisonment in the penitentiary for a period of one year or fined $500 as prescribed in section 1937 of the Penal Law. This section, however, is not so limited. It does not apply where any other punishment “ is specially prescribed by this chapter ” of the Penal Law nor where it is prescribed “ by any other statutory provision in force at the time of the conviction and sentence.” The appellant was convicted and sentenced March 31, 1916, to be imprisoned in the penitentiary of the city of New York in accordance with the provisions of section 4 of chapter 579 of the Laws of 1915, known as the Parole Commission Act. This section, so far as material to the present consideration, provides: “ After the creation of a parole commission in any of the said cities as hereinbefore provided, any person convicted of any offense punishable by imprisonment in a penitentiary * * "* shall, if committed to any institution under the jurisdiction of the department of correction in said city, be sentenced and committed to a penitentiary * * *. The duration of the commitment of any person to the penitentiary shall not be fixed or limited by the court in imposing sentence, except that the term of such imprisonment in the said institution shall not exceed three years, and such imprisonment shall be terminated as prescribed in section five of this act. * * *.” Section 5 gives power to the parole commission “ to parole, conditionally release, discharge, retake or reimprison ” a person so committed.

The offense for which relator was convicted was punishable by imprisonment in a penitentiary, which was under the jurisdiction of the department of correction of the city of New York. (Greater N. Y. Charter [Laws of 1901, chap. 466], § 695, as amd. by Laws of 1912, chap. 456.) The parole commission in the city of New York was created December 17, 1915. (See People ex rel. Cerzosie v. Warden, etc., 181 App. Div. 934; 223 N. Y. 307.) Chapter 579 of the Laws of 1915 was, therefore, in force at the time of the appellant’s conviction and sentence. He was, therefore, properly sentenced under that act. The constitutionality and validity of the act has repeatedly been decided by the courts.

The appellant further claims that he was entitled to a diminution of the term of his imprisonment by reason of the “ Compensation Law ” (Laws of 1916, chap. 358). Section 16 of that act

* expressly states that the provisions of that act shall not apply to prisoners in any institution to which chapter 579 of the Laws of 1915 applies, who are committed thereto as provided in that act.

The order should be affirmed, without costs.

Clarke, P. J., Dowling, Smith and Shearn, JJ., concurred.

Order affirmed.

Adding to Prison Law (Consol. Laws, chap. 43; Laws of 1909, chap. 47), § 249.— [Rep.