Benjamin v. Meyer

• Decision Date: 13 January 1966
• Citation: 48 Misc.2d 998,266 N.Y.S.2d 485
• Parties: Arthur BENJAMIN, Relator, v. A. J. MEYER, Acting Warden of Attica State Prison, R. G. Oswald, Chairman of N. Y. Board of Parole, and the Court of General Sessions for New York County of its successor, the Supreme Court, County of New York, Respondent.
• Court: New York Supreme Court

Page 485

266 N.Y.S.2d 485

48 Misc.2d 998

Arthur BENJAMIN, Relator, v. A. J. MEYER, Acting Warden of Attica State Prison, R. G Oswald, Chairman of N. Y. Board of Parole, and the Court of General Sessions for New York County of its successor, the Supreme Court, County of New York, Respondent.

Supreme Court, Erie County.

Jan. 13, 1966.

Louis J. Lefkowitz, Atty. Gen. (Joseph J. Ricotta, Dunkirk, of counsel), for respondents.

Arthur Benjamin, in pro. per.

HAMILTON WARD, Justice.

This is an application by an inmate of the Attica State Prison for an order directing that the records of that institution and of the New York State Board of Parole be amended so as to credit the petitioner with certain parole warrant time alleged to have accrued to him in 1963 and with certain jail time alleged to have accrued in 1956.

It appears that the petitioner, serving a 5 to 10 year sentence imposed in 1958 by the Court of General Sessions, New York County, was paroled on March 29, 1963, to the State of California under the terms of the Interstate Compact for the out-of-State Supervision of Parolees, Correction Law § 244. The affidavit of Senior Parole Officer, New York State Division of Parole, recites the following chronology of events:

'On May 25, 1965 a telegram was received requesting a Parole Violation Warrant be issued as a protective device. Violation of Parole Warrant #36837 was issued and sent to California the same day. A report was also received on 5/25/65 (dated 5/12/65) which detailed his activities in California. On the basis of the threats made by the relator against one, Sheila Levinson, the Board declared him delinquent as of April 4, 1965. A California report received 7/22/65 (dated 7/15/65) reported that on 5/27/65 Benjamin was taken to the Hollywood Division of the Los Angeles Police Department, by the Parole Agent, was placed under arrest on a burglary charge and on 5/28/65 the New York Violation of Parole warrant was filed. This report further indicated that the Los Angeles District Attorney's office would not accept the burglary complaint against relator but would accept five counts of a Violation of 653(M) California Penal Code, offense committed by use of telephone--use of obscene language. A Los Angeles Police Department arrest report shows the date and time arrested, on these latter charges, to be June 8, 1965, 11:55 A.M. The California report also states that on 7/8/65 Benjamin was found guilty, in the Municipal Court of Los Angeles, Department 69, of one count of threatening telephone call. Benjamin received a suspended sentence and was placed on two years of summary court probation. A report received 8/10/65 (dated 8/4/65) shows that the original Burglary charge in California 5/27/65) was dropped on 6/3/65. New York agents took custody of Benjamin on July 28, 1965 and he was returned to Attica on August 5, 1965, being credited with 28 days Parole Jail Time from 7/8/65 to 8/5/65.'

The petitioner now contends that he should be credited with all time spent by him in jail in California from the date of his arrest on May 27, 1965, until his return to prison on August 5, 1965.

No question is raised here as to the applicability of Penal Law § 2193, Subdivision 2, to the petitioner while he was detained in California solely as a parole violator. In fact, the Board of Parole has credited the petitioner with the time spent by him in jail in California following his sentence on July 8, 1965. This credit was applied presumably because during this period the petitioner was detained solely by reason of the parole violation warrant lodged against him, the criminal charge having been disposed of by the imposition of a suspended sentence and probation. As to the balance of the period of...