People ex rel. Rainone v. Murphy

Appellate Division of the Supreme Court of New York

People ex rel. Rainone v. Murphy

1 A.D.2d 754, 147 N.Y.S.2d 197, 1955 N.Y. App. Div. LEXIS 3666

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 1955

StatusPublished

This text of 1 A.D.2d 754 (People ex rel. Rainone v. Murphy) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People ex rel. Rainone v. Murphy, 1 A.D.2d 754, 147 N.Y.S.2d 197, 1955 N.Y. App. Div. LEXIS 3666 (N.Y. Ct. App. 1955).

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Opinion

Order reversed on the law without costs of this appeal to any party, writ dismissed, and relator remanded to the custody of the Warden of Auburn State Prison. Memorandum: Both parties agree that the sole issue here is whether or not relator was serving his State sentence of ten years concurrently with the Federal sentence, the period being May 8, 1951 until March 24, 1954. During this period, although a New York State parole violator, he was confined at Leavenworth under a sentence imposed on February 21,1951, under a conviction in the United States District Court, Eastern District. Subdivision 2 of section 2193 of the Penal Law, which relator contends requires such a result, does not aid him. That section credits a parole violator with all time spent in a place of detention “ by virtue of his arrest as a parole violator ”. This he has received. His confinement at Leavenworth was not for such, but for committing a Federal crime. (Matter of Carney v. New York State Dept. of Correction, 278 App. Div. 1018.) Relator himself interrupted the service of his State sentence by violating the conditions of his parole. (See Zerbst v. Kidwell, 304 U. S. 359, 361.) State and Federal sentences, being sentences of confinement to two different places, do not run concurrently. (People ex rel. Hesley v. Ragen, 396 Ill. 554; Matter of Sichofsky, 201 Cal. 360; Matter of Huber, 334 Mich. 100; Ex. Parte Chadwick, 155 Tex. Crim. Rep. 410; Penal Law, § 2190.) In turning over relator to the Federal authorities, the New York State Board of Parole did not lose its right to thereafter proceed against him as a parole violator. (Matter of Carney v. New York State Dept. of Correction, supra; People ex rel. Gariti v. Brophy, 255 App. Div. 823; Matter of Costanza v. Martin, 261 App. Div. 1034; People ex. rel. Zakowicki v. Morhous, 285 App. Div. 311, 313.) All concur. (Appeal- from order of Cayuga County Court sustaining the writ of habeas corpus and ordering the immediate discharge of relator.) Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.

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Order reversed on the law without costs of this appeal to any party, writ dismissed, and relator remanded to the custody of the Warden of Auburn State Prison. Memorandum: Both parties agree that the sole issue here is whether or not relator was serving his State sentence of ten years concurrently with the Federal sentence, the period being May 8, 1951 until March 24, 1954. During this period, although a New York State parole violator, he was confined at Leavenworth under a sentence imposed on February 21,1951, under a conviction in the United States District Court, Eastern District. Subdivision 2 of section 2193 of the Penal Law, which relator contends requires such a result, does not aid him. That section credits a parole violator with all time spent in a place of detention “ by virtue of his arrest as a parole violator ”. This he has received. His confinement at Leavenworth was not for such, but for committing a Federal crime. (Matter of Carney v. New York State Dept. of Correction, 278 App. Div. 1018.) Relator himself interrupted the service of his State sentence by violating the conditions of his parole. (See Zerbst v. Kidwell, 304 U. S. 359, 361.) State and Federal sentences, being sentences of confinement to two different places, do not run concurrently. (People ex rel. Hesley v. Ragen, 396 Ill. 554; Matter of Sichofsky, 201 Cal. 360; Matter of Huber, 334 Mich. 100; Ex. Parte Chadwick, 155 Tex. Crim. Rep. 410; Penal Law, § 2190.) In turning over relator to the Federal authorities, the New York State Board of Parole did not lose its right to thereafter proceed against him as a parole violator. (Matter of Carney v. New York State Dept. of Correction, supra; People ex rel. Gariti v. Brophy, 255 App. Div. 823; Matter of Costanza v. Martin, 261 App. Div. 1034; People ex. rel. Zakowicki v. Morhous, 285 App. Div. 311, 313.) All concur. (Appeal- from order of Cayuga County Court sustaining the writ of habeas corpus and ordering the immediate discharge of relator.) Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.

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1 A.D.2d 754, 147 N.Y.S.2d 197, 1955 N.Y. App. Div. LEXIS 3666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-rainone-v-murphy-nyappdiv-1955.

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