People ex rel. Scott v. McDonnell

9 Misc. 2d 443, 133 N.Y.S.2d 451, 1954 N.Y. Misc. LEXIS 1889

Opinion

Jacob Markowitz, J.

This is an application brought on by writ of habeas corpus for the release of the relator on the ground that he was illegally sentenced to an indeterminate penitentiary term pursuant to the so-called Parole Commission Law, article 7-A of the Correction Law. His contention is that the sentencing court by asserting at the time of sentence that he had “ a long record of convictions ” conclusively established that he was not a fit subject for reformation and therefore that he could only be sentenced under the maximum term provisions of the Penal Law. This department has consistently held that such contention is without merit. Far more severe expressions by sentencing courts as to the incorrigibility and propensity for criminality of the defendant before it have been held consistent with the possibility of redemption contemplated by the aforesaid article 7-A. It is to be presumed that the sentencing court did not disregard its duty under the law. (See People ex rel. Schurman v. Ashworth, 9 Misc 2d 448; People ex rel. Granza v. Johnston, 9 Misc 2d 446, affd. 271 App. Div. 825; People ex rel. Halle v. Ashworth, 9 Misc 2d 451, affd. 268 App. Div. 765.)

Writ is dismissed and the relator is remanded.