Browne v. New York State Bd. of Parole

• Decision Date: 07 July 1961
• Citation: 176 N.E.2d 492,218 N.Y.S.2d 33,10 N.Y.2d 116
• Parties: , 176 N.E.2d 492 In the Matter of Michael BROWNE, Respondent, v. NEW YORK STATE BOARD OF PAROLE et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 33

218 N.Y.S.2d 33

10 N.Y.2d 116, 176 N.E.2d 492

In the Matter of Michael BROWNE, Respondent, v. NEW YORK STATE BOARD OF PAROLE et al., Appellants.

Court of Appeals of New York.

July 7, 1961.

Louis J. Lefkowitz, Atty. Gen. (Norman Friedman, Samuel A. Hirshowitz and Irving Galt, New York City, of counsel), for appellants.

Joseph Lonardo, Long Island City, for respondent.

FROESSEL, Judge.

On September 2, 1954, following his plea of guilty to the misdemeanor of attempted extortion allegedly committed on April 29, 1953, respondent was sentenced by the Court of Special Sessions of the City of New York as a youthful offender to the Elmira Reception Center for an indefinite term. ^*

Subsequently, on November 10, 1954, respondent was indicted for the crimes of attempted sodomy, robbery first degree, grand larceny first degree, and assault second degree (two counts), which acts were alleged to have been committed while on probation on August 12, 1954 about 16 months after the commission of the misdemeanor for which respondent had already been convicted. Respondent was found guilty, after a jury trial, as indicted (except that, as to one count of assault, second degree, he was convicted of assault, third degree).

On May 18, 1955 he was sentenced to Elmira Reception Center under each count of the indictment for an indefinite term, the sentences 'to run concurrently and not consecutively'. The statement 'concurrently and not consecutively' did not in anywise refer to the prior sentence imposed upon respondent by the Court of Special Sessions on September 2, 1954. Indeed, when the court told defendant, after sentencing his codefendant, Brayne: 'and in your case also, the sentences are to run concurrently and not consecutively', he was clearly talking about the sentences following the felony indictment (the only one involving Brayne), thereby announcing that both were to be sentenced alike. Respondent alleged and it was not disputed that, at the time of sentencing, the County Court 'had full knowledge of the fact that I was then under sentence by said Court of Special Sessions, and was serving the same'.

The maximum terms for which appellants could hold respondent pursuant to the sentences for an indefinite term were three years for the 1954 misdemeanor conviction, and five years for the 1955 felony and misdemeanor convictions (Correction Law, Consol.Laws, c. 43, § 288; Penal Law, Consol.Laws, c. 40, § 2184-a).

Respondent was paroled and released from Elmira Reformatory on December 11, 1957. Thereafter, on September 26, 1959, he was recommitted by direction of appellants for allegedly absconding during the period April 4, 1959 to September 26, 1959. Following his recommitment appellants computed the maximum expiration date of respondent's term to be February 1, 1963. In arriving at this date, appellants regarded the two sentences (of September 2, 1954 and May 18, 1955) as 'consecutive', adding the maximum of the second to the maximum of the first.

On June 6, 1960 respondent initiated this article 78 proceeding to secure a determination that appellants erred in setting the maximum date of expiration at February 1, 1963, since the two sentences should properly run concurrently, and not consecutively; and to compel appellants to amend their records accordingly.

Special Term, relying upon the decision of this court in People v. Ingber, 248 N.Y. 302, 162 N.E. 87, as well as People ex rel. Winelander v. Denno, 9 A.D.2d 898, 195 N.Y.S.2d 165 and People ex rel. Gerbino v. Ashworth, 267 App.Div. 579, 47 N.Y.S.2d 551, the latter cases purporting to follow Ingber, held that, upon failure of the May 18, 1955 sentence to state that the terms then imposed were consecutive to the earlier misdemeanor sentence, a presumption arose that the terms were to be concurrent. The Appellate Division unanimously affirmed without opinion.

We do not agree with the courts below. Rather, as appellants correctly contend, the 'so-called presumption of concurrence' is not applicable to sentences imposed at different times, in different courts, for completely unrelated crimes. Special Term's reliance upon People v. Ingber (supra) is misplaced. In that case, we did not hold that such a presumption of concurrence attached to sentences imposed at different times for wholly unrelated crimes which were committed on widely divergent dates. Our holding was merely that, in cases not falling within the scope of section 2190 of the Penal Law, the discretionary power of the court to impose a cumulative rather than a concurrent sentence 'remains, undiminished, as it was at common law' (248 N.Y. at pages 304-305, 162 N.E. at page 88). Chief Judge Cardozo stated (248 N.Y. at page 306, 162 N.E. at page 89): 'Nothing short of obvious compulsion will lead us to a reading of the statute whereby the pains and penalties of crimes are shorn of all terrors more poignant than a form of words.' The statement in Ingber to the effect that where the Judge 'omitted through inadvertence' to make the terms successive, the 'presumption then was that the terms were meant to be concurrent' is quite inappropriate to the case at bar. It is clear from the context in which it was made that the court was there referring to cases in which a defendant 'sentenced at the same time for two or more offenses is one who has been tried for the two offenses at the same term of court and before the same judge' (248 N.Y. at page 305, 162 N.E. at page 88).

The inapplicability of the Ingber case to the situation at bar is further made clear by our decision in People on Petition of Aronstein ex rel. Mello v. Warden, 1 A.D.2d 977, 150 N.Y.S.2d 915, appeal dismissed 1 N.Y.2d 893, 154 N.Y.S.2d 647. In that case, appellant was arrested while on parole from State prison, and was sentenced to the New York City Penitentiary for one year for another crime. After serving six months of that sentence he was released and returned to State prison to finish out his unexpired term. In seeking credit against the State prison term for the time served in the city penitentiary, appellant advanced the identical argument made by respondent, and adopted by the courts below, in the instant case. In fact, the same authorities were relied upon, i. e., People v. Ingber (supra) and People ex rel. Gerbino v. Ashworth (supra).

The Appellate Division unanimously affirmed an order dismissing a writ of habeas corpus, and we dismissed appellant's appeal to this court on the ground that no constitutional question was directly involved. We thus in effect rejected the contention that a presumption of concurrence was applicable in the case of two unrelated crimes since, if appellant had been right in his...