Cohen v. State, 42076

• Decision Date: 01 September 1965
• Docket Number: No. 42076,42076
• Citation: 47 Misc.2d 470,262 N.Y.S.2d 980
• Parties: David COHEN, Claimant, v. The STATE of New York. Claim
• Court: New York Court of Claims

Page 980

262 N.Y.S.2d 980

47 Misc.2d 470

David COHEN, Claimant, v. The STATE of New York.

Claim No. 42076.

Court of Claims of New York.

Sept. 1, 1965.

Louis Kaye, New York City, for claimant.

Louis J. Lefkowitz, Atty. Gen., by Arthur W. Richardson, Asst. Atty. Gen., of counsel, for the State.

J. SEWARD BODINE, Judge.

This is a claim for unlawful imprisonment. The claim has not been assigned or submitted to any other jurisdiction for determination. The claim is based upon the illegal incarceration of the claimant by the State for approximately 360 days.

In April of 1955 claimant was arrested for violation of section 1293-d of the Penal Law and released on bail. On August 17, 1955 the indictment for that charge and others was filed in Queens County. He entered a plea of guilty and was convicted on February 6, 1956 and released on bail pending sentencing. On March 25, 1956 he was arrested in New York County on an extortion charge and committed to city prison pursuant to a commitment signed March 26 1956 by the Presiding Magistrate. On that same day a Queens County Court warrant for the first charge was also lodged at city prison.

On April 10, 1956 he was sentenced in Queens County Court on the first charge for a term of not less than four years nor more than five years. He was returned to city prison April 12, 1956 under a State prison commitment. The indictment for the second charge was filed April 19, 1956 and he was arraigned April 23, 1956 and committed to city prison. He was sentenced March 5, 1957 to a definite term of one year, committed to city prison and credited with 344 days of jail time which would relate back to March 25, 1956 when he was arrested. He was released March 20, 1957 after having served 360 days for the second charge or sentence. On March 22, 1957 claimant was received at Sing Sing Prison and the time for the first sentence began to run.

The controversy centers around the time between April 10, 1956 when he was sentenced for the first charge and March 22, 1957 when he was received at Sing Sing. This time period comprised 344 days. There is another period between March 26, 1956 when the Queens County Court warrant was lodged at city prison and April 10, 1956 when he was sentenced. The second period of 16 days involved jail time.

The State maintains that the claimant was imprisoned on two consecutive sentences and served no more time than he had been sentenced to.

According to section 2190 of the Penal Law and Matter of Browne v. New York State Board of Parole, 10 N.Y.2d 116, 218 N.Y.S.2d 33, 176 N.E.2d 492, two sentences imposed in different jurisdictions for unrelated crimes cannot be presumed to run concurrently unless specified by one of the sentencing courts. No mention was made by either judge so the two sentences must be deemed to run consecutively.

When claimant was returned to prison in New York County on April 12, 1956 after being sentenced in Queens County Court, his imprisonment was pursuant to a State prison commitment. True he was also being held pending disposition of the second charge, but he was also being held by the State. His sentence could not begin to run until he was actually delivered to the warden of a State prison (Correction Law, § 231). According to the Code of Criminal Procedure, section 488, after having been sentenced, the defendant must be delivered to the proper officer in execution of the judgment of the court. The State managed to comply with this provision after 344 days.

These time periods between sentencing and delivery to the warden of a State prison are commonly called 'transportation time' and there is precedent for requiring the State to credit the time against the defendant's sentence (People ex rel. Manekos v. Nobel, 26 Misc.2d 460, 207 N.Y.S.2d 501; Bretti v. Eastman, Sup., 219...