People v. Desatnick

9 Misc. 2d 109, 172 N.Y.S.2d 212, 1957 N.Y. Misc. LEXIS 2135

• Court: New York County Courts
• Decided: November 21, 1957
• Status: Published

Opinion

James P. McG-rattan, J.

This is a motion by the defendant to vacate his sentence of June 6, 1956 and to be resentenced under this indictment.

The defendant in his moving papers contends that the sentence of June 6, 1956 is illegal and void in law inasmuch as the sentencing Judge after sentencing the defendant to Sing Sing Prison under an indeterminate sentence, the maximum of such imprisonment to be two years and the minimum one year thereof, or directed that there be “ time off for good behavior ”.

The defendant now complains that the Parole Board has refused to observe this direction of the court, inasmuch as he was advised by the Parole Board that he would have to serve his maximum time of two years.

The recommendation of the court is not binding upon the Parole Commission as it is their duty to determine when the prisoner is sufficiently rehabilitated or reformed to be fit for return to society (Correction Law, § 204). The recommendation of the court did not have the effect of invalidating a sentence which the court had jurisdiction to impose. The Parole Commission is under no obligation to follow the court’s recommendation. (People v. Tower, 308 N. Y. 123, 125.)

Defendant’s motion is denied. Order entered accordingly.