People ex rel. Cecere v. Jennings

• Decision Date: 13 February 1929
• Citation: 250 N.Y. 239,165 N.E. 277
• Parties: PEOPLE ex rel. CECERE v. JENNINGS, Warden, et al.
• Court: New York Court of Appeals Court of Appeals

250 N.Y. 239

165 N.E. 277

PEOPLE ex rel. CECERE

v.JENNINGS, Warden, et al.

Court of Appeals of New York.

Feb. 13, 1929.

Mandamus proceeding by the People, on the relation of William Cecere, against Edgar S. Jennings, as Warden, and another. An order of the Supreme Court, denying an application for peremptory mandamus, was affirmed by the Appellate Division (224 App. Div. 872, 230 N. Y. S. 894), and relator appeals.

Affirmed.Appeal from Supreme Court, Appellate Division, Fourth department.

Frank S. Coburn, of Auburn, for appellant.

Hamilton Ward, Atty. Gen. (Bernard A. Katz, of Auburn, of counsel), for respondents.

PER CURIAM.

Appellant was convicted on July 6, 1917, of the crime of robbery, and sentenced to imprisonment for a minimum term of 5 years and a maximum of 20. On December 8, 1919, the term was commuted by the Governor to a minimum of 2 years 5 months and 9 days, and the same maximum as before. The commutation was upon the condition that, if the prisoner should be thereafter convicted of any felony committed between the date of his discharge and the date of the expiration of the full time thereby commuted, he should be deemed an escaped convict in respect of the commuted term, and, in addition to any penalty imposed for the new felony, should be compelled to serve the portion of the commuted term remaining unserved, without deduction or commutation for good behavior.

The Governor's order was not effective in and of itself to require that the appellant be released from custody. The sentence was still an indeterminate one, subject to the action of the board of parole for state prisons, the only change being a reduction of the mimimum. People ex rel. Atkins v. Jennings, 248 N. Y. 46, 49, 50, 161 N. E. 326. Following that reduction, the board made an order on December 16, 1919, that he be released upon parole. He went forth from prison walls, but remained even then, until the expiration of the maximum term, in the legal custody and under the control of the warden of the prison. Prison Law, § 214; Laws 1909, c. 47; Consol. Laws, c. 43. Cf. People ex rel. Newton v. Twombly, 228 N. Y. 33, 126 N. E. 255. He failed to comply with the conditions upon which this privilege depended. In January, 1921, he was convicted of another felony, 1921, he was convicted of degree, and for this new offense was sentenced to imprisonment for a term of one year; the latter term not to begin until the expiration of all the terms of imprisonment to which he had been already sentenced. Penal Law (Consol. Laws, c. 40) § 2190; People v. Ingber, 248 N. Y. 302, 304, 162 N. E. 87; People ex rel. Newton v. Twombly, supra. As a consequence of this new conviction, he forfeited the commutation granted by the Governor and the benefit of his parole. Returned to prison, he made a demand upon the warden in December, 1927, after having remained a prisoner for an additional period of nearly seven years, that his name be certified to the Governor as eligible for parole. Prison Law (Laws [250 N.Y. 241]1909, c. 47) §§ 233, 242. The demand having been refused, a petition for a mandamus followed.

We find it unnecessary to determine whether the board of parole might be ordered by mandamus to consider the appellant's case, if consideration were to be refused on the ground of want of power. The appellant is little helped, though jurisdiction be assumed. Parole is not a right, but a privilege, to...