People ex rel. Ellis v. New York State Dept. of Correction
| Citation | 250 N.Y.S.2d 693,42 Misc.2d 1074 |
| Parties | The PEOPLE of the State of New York ex rel. Donald ELLIS, Petitioner, for an order pursuant to Article 78, Civil Practice Law and Rules, v. NEW YORK STATE DEPARTMENT OF CORRECTION and their Agents, Respondents. |
| Decision Date | 16 May 1964 |
| Court | United States State Supreme Court (New York) |
Donald Ellis, in pro. per.
Louis J. Lefkowitz, Atty. Gen., William S. Elder, Jr., Asst. Atty . Gen., for respondents.
Pursuant to an order made on March 6, 1964, this matter came on for a hearing on May 6, 1964 at which time testimony was taken.
The petitioner was sentenced on April 22, 1954 to a term of from 2 1/2 to 5 years upon a conviction of Burglary 3rd Degree. He was committed to Elmira Reception Center credited with 85 days jail time served. Thereafter on October 25, 1955, he was paroled and subsequently, because of the commission of a crime, he was declared delinquent on April 5, 1957. On July 9, 1957 he was convicted of Grand Larceny 2nd Degree, sentenced to a term of from 4 to 8 years and returned to prison.
Because of these facts, the petitioner forfeited the 17 months and 11 days while on parole and was, therefore, required to serve the 3 years, 3 months and 2 days on his first sentence before commencing his new term.
The petitioner seeks an order pursuant to the provisions of sections 218 and 219 of the Correction Law which would give him credit for and the benefit of the time he was out on parole. The petitioner contends that the amendments to these sections provide for the formula he espouses.
The serious question involved here is whether section 219 of the Correction Law, effective July 1, 1960, applies to the benefit of the petitioner. This section is intended to mitigate the treatment of parolees who are convicted of felonies committed while on parole. If petitioner is correct in his contention, he will receive the benefit of having the computation of his delinquent time commence as of the date of delinquency rather than the date of parole. In other words he would receive credit for his parole time up to delinquency.
Chapter 473 of the Laws of 1960 repealed section 219 of the Correction Law, and adopted a new section 219. It also amended section 218 of the Correction Law.
Insofar as it is applicable to the instant proceeding, the new section 219 (effective July 1, 1960) provides as follows:
'If any person be convicted in this state of a crime or offense committed while on parole from an institution under the jurisdiction of the commissioner of correction and if he be sentenced therefor to such an institution he may, in addition to the sentence which may be imposed for such crime or offense, and before beginning to serve such sentence, be compelled to serve in such an institution, the portion remaining of the maximum term of the sentence on which he was released on parole calculated as provided in section two hundred eighteen of this article.'
It is the petitioner's claim that the foregoing together with the amendment to section 218, Correction Law substantiate his position.
Section 218 was amended to provide that the delinquent time remaining to be served by a parole violator is to be computed from the date of declaration...
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People ex rel. Metz v. LaVallee
...foregoing enactments have been construed by our courts as having no Retroactive application. People ex rel. Ellis v. New York State Department of Correction, 42 Misc.2d 1074, 250 N.Y.S.2d 693. The policy of the Commissioner of Correction establishing July 1, 1960, (the effective date of the......