Tracher v. Lyons

271 A.D.2d 765

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1946
• Status: Published

Opinion

This is an appeal by the Commis- ■ sioner of Correction from an order of the Albany Special Term of the Supreme Court directing him to deliver to petitioner, an inmate of Attica State Prison, a certified copy of a transfer order of the Department of Correction, dated December 18, 1934, removing petitioner from Elmira Reformatory to Wallkill State Prison. The proceeding was instituted under article 78 of the Civil Practice Act. On March 14, 1934, petitioner was received at Elmira Reformatory after conviction for burglary, third degree, under a maximum sentence of ten years. On December 18th of that year, he, with a number of other inmates, was transferred to Wallkill Prison because of overcrowded conditions. Later petitioner was transferred to Sing Sing Prison. He was paroled from Sing Sing Prison on November 6, 1935. Following the commission of a crime while on parole, he was then committed to Attica Prison under a new sentence for a term of not less than ten, nor more than twenty years. On May 5, 1942, respondent was paroled, as of June 24th of that year, on the delinquent time remaining under the Elmira sentence so he could commence the service of his new sentence. The expiration date of the original ten-year sentence to Elmira expired on April 23, 1944. In this proceeding the only question for this court’s determination is whether the appellant failed to perform a duty enjoined by law by refusing to supply petitioner with a certified copy of the order of the Department of Correction directing his removal from Elmira Reformatory to Wallkill State Prison. There is no statute requiring the Commissioner of Correction to supply petitioner with a copy of the order demanded by him. Petitioner alleges he desires' the copy of this order for use in a proceeding in Supreme Court. If petitioner desires such order for use in that court, he may obtain the same by subpoena directed to the proper official in the Department of Correction. The court also notes that the transfer order in question would appear to be immaterial for the reason that it has no bearing on petitioner’s present incarceration. Order reversed, on the law and facts, and the application is dismissed, without costs. All concur.