MATTER OF ERHARDT v. State Bd. of Parole

• Decision Date: 14 December 1950
• Citation: 199 Misc. 131
• Court: New York Supreme Court
• Parties: In the Matter of Herbert Erhardt, Petitioner,<BR>v.<BR>New York State Board of Parole, Respondent.

199 Misc. 131

In the Matter of Herbert Erhardt, Petitioner,

v.New York State Board of Parole, Respondent.

December 14, 1950.

Herbert Erhardt, petitioner in person.

Nathaniel L. Goldstein, Attorney-General (Wm. S. Elder, Jr., of counsel), for respondent.

WARNER, J.

On March 10, 1930, the petitioner Erhardt was sentenced by the Broome County Court to a definite sentence, ten-years imprisonment, in Auburn State Prison upon his plea of guilty to the crime of grand larceny, second degree, while armed. By reason of credits for time spent in jail, his prison term under the sentence would have expired December 22, 1939. His sentence was commuted by the Governor on January 31, 1935. This commutation contained the usual felony provision that if during the period between the date of his release by reason of the Governor's reduction of his sentence and the date of the expiration of the full term for which he was sentenced, he committed a felony within this State, or a crime under the laws of any other State which if committed here would be a felony, and thereafter should be convicted of a crime he should, in addition to the sentence which might be imposed on account of the subsequent felony conviction be compelled to serve in a State prison the remainder of the term, without commutation or compensation, which he should have been compelled to serve but for such commutation. On February 1, 1935, Erhardt was released from prison after signing the usual parole agreement by which he remained under the jurisdiction of the Board of Parole until December 22, 1939. (Correction Law, § 215.)

The aforesaid parole agreement, among other things, provided as follows, to wit: "(7.) This parole is granted under the conditions as set forth in the commutation granted by the Governor, which provides that I shall live and remain at Liberty without violating the law, and be subject to the jurisdiction and control of the Board of Parole, as provided in article eight of the Correction Law, and also under further condition that if I shall, during the period between the date of my release on parole and the date of the expiration of the full term for which I was sentenced, commit any felony, I shall, in addition to the sentence which may be imposed for such felony, be compelled to serve in a State prison or penitentiary, the remainder of the term which I would have been compelled to serve but for the reduction of my sentence. But I may, however, earn compensation in reduction of the remainder of such term, and provided further that I willingly and efficiently perform the duties assigned to me prior to my discharge." (Emphasis supplied.)

The petitioner herein maintains that he is being held in prison unlawfully and should be discharged forthwith. He complains that he is not being given credit for compensation earned, as provided for in the parole agreement which he signed on February 1, 1935. The Attorney-General, appearing for the respondent, the New York State Board of Parole, urges that the Parole Board had no authority to make a contract with petitioner which altered the conditions, contained in the Governor's conditional commutation, among which was a condition that upon a felony conviction (as developed here), petitioner should be deprived of his right to earn compensation on the balance of his original term.

In the case at bar the aforesaid parole agreement was effected with the petitioner by the Parole Board as an agent of the Governor on January 22, 1935, some days in advance of the signing of...