Mulligan v. Murphy
| Decision Date | 07 May 1964 |
| Citation | 14 N.Y.2d 223,199 N.E.2d 496,250 N.Y.S.2d 412 |
| Parties | , 199 N.E.2d 496 In the Matter of John Joseph MULLIGAN, Respondent, v. Robert E. MURPHY, as Warden of Auburn Prison, Respondent. The People of the State of New York, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Louis J. Lefkowitz, Atty. Gen. (Anthony J. Lokot, Paxton Blair and Ruth Kessler Toch, Albany, of counsel), for appellant.
Hayden H. Dadd, Attica, for John Joseph Mulligan, respondent.
Petitioner was sentenced in the Onondaga County Court on April 18, 1949 to a term of from 2 to 10 years. Thereafter on May 16, 1950 he was released on parole, owing 8 years, 6 months and 14 days on his sentence. On August 30, 1955 petitioner was declared delinquent because of the commission of a felony while on parole. He was returned to prison on November 30, 1955, and compelled to serve 8 years, 6 months and 14 days of delinquent time as computed from the date of his release on parole, as required by section 219 of the Correction Law as then in effect, before beginning to serve the new sentence of 5 to 10 years imposed by the Cortland County Court for the felony committed while on parole.
On April 12, 1960 chapter 473 of the Laws of 1960 was enacted, to be effective July 1, 1960. Among other things, it repealed section 219 of the Correction Law, Consol.Laws, c. 43, adopting however a new section 219, and amended section 218 thereof. The new section 219 in pertinent part provides: '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.'
Section 218 was amended to provide in substance that the delinquent time remaining to be served by a parole violator be computed from the date of the declaration of delinquency by the Board of Parole and not from the date of release on parole.
Section 5 of chapter 473 of the Laws of 1960 provided:
The Commissioner of Correction in implementing the 1960 amendment reviewed the sentences of all prisoners then serving delinquent time, recomputed the delinquent time owed in accordance with the new section 219 and the amended section 218, and directed that all prisoners whose delinquent time as recomputed would have expired on or before July 1, 1960, the effective date of the 1960 amendment, be deemed to have commenced service of their new sentences on that date.
Petitioner, as a prisoner 'serving delinquent time on the effective date' of chapter 473 of the Laws of 1960, commenced the instant article 78 proceeding, contending that a recomputation of his delinquent time pursuant to article 8 of the Correction Law as amended would show that he owed only 3 years and 3 months of such time when he returned to prison on November 30, 1955; therefore, the maximum on his original sentence would have expired on February 28, 1959, and that under the new section 219 he was entitled to have the last-mentioned date mark the commencement of the service of his new sentence.
The Supreme Court granted petitioner relief to the extent of directing recomputation of the original sentence, which, as recomputed, would have expired on February 28, 1959, which date was to mark the commencement of the service of the new sentence. The Appellate Division affirmed the Supreme Court determination.
The question on this appeal is simply: What is the proper construction and application of chapter 473 of the Laws of 1960?
Section 129 of McKinney's Statutes (McKinney's Consol.Laws of N.Y., Book 1, Statutes) provides: ...
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