People ex rel. Dote v. Martin

• Decision Date: 07 June 1945
• Citation: 294 N.Y. 330,62 N.E.2d 217
• Parties: PEOPLE ex rel. DOTE v. MARTIN, Warden.
• Court: New York Court of Appeals Court of Appeals

294 N.Y. 330

62 N.E.2d 217

PEOPLE ex rel. DOTE

v.MARTIN, Warden.

Court of Appeals of New York.

June 7, 1945.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Proceeding by the People, on the relation of Alphonse Dote, for a writ of habeas corpus directing Walter B. Martin, as Warden of the Attica State Prison to produce relator before Special Term of the Supreme Court for hearing on the question of relator's right to release from respondent's custody. Order of the Special Term (Hinkley, J.) sustaining the writ and directing relator's discharge from imprisonment was reversed by the Appellate Division of the Supreme Court, 269 App.Div. 69,52 N.Y.S.2d 857, the writ dismissed, and relator remanded to custody of such warden, and relator appeals.

Affirmed. George W. Black and Edward A. Wolff, both of Rome, for appellant.

Nathaniel L. Goldstein, Atty. Gen. (Wortley B. Paul, of Buffalo, and Wendell P. Brown, Patrick H. Clune, and Herman N. Harcourt, all of Albany, of counsel), for respondent.

LEHMAN, Chief Judge.

The relator, Alphonse Dote, was convicted of the crime of burglary, first degree, on April 28, 1922, and sentenced to Auburn Prison for not less than thirteen nor more than twenty years. He was paroled on November 21, 1931. He was declared delinquent as of February 14, 1934, and returned to State prison on March 2, 1934. He was again paroled on March 2, 1936. On February 17, 1938, he was again declared delinquent as of November 9, 1937, on a finding that he had ‘absconded from supervision.’ He was not returned to State prison until April 23, 1940. He pleaded guilty on April 22, 1940, to the crime of violation of section 1694 of the Penal Law, Consol.Laws c. 40, upon an indictment found on January 14, 1938, and was sentenced to Attica State Prison for a term of not less than one year nor more than two years upon that plea. Service of that sentence can begin only after he has served the time owing upon his original sentence.

In July, 1944, the relator obtained a writ of habeas corpus claiming that he had served the maximum term of imprisonment upon both the sentence of thirteen to twenty years imposed upon his conviction in 1922 and the sentence of one to two years imposed upon his plea of guilty in 1940. In his return to the writ the warden of Attica Prison stated that the relator was ‘reparoled on delinquent time owing upon the sentence’ (imposed in 1922) ‘on May 12, 1944, to commence serving the sentence’ (imposed for his later crime). The writ was sustained by the justice at Special Term and the warden of Attica Prison was directed to release the relator from custody on the ground that the relator's term of imprisonment of thirteen to twenty years imposed in 1922 could not be extended by a release on parole and subsequent declaration of delinquency and expired not later than twenty years after the sentence was imposed. Citing People ex rel. Ingenito v. Warden, etc., Auburn Prison, 267 App.Div. 295, 46 N.Y.S.2d 72, affirmed 293 N.Y. 803, 59 N.E.2d 174. The order of Special Term was reversed by the Appellate Division and the relator remanded to the custody of the warden.

Upon the declaration of delinquency by the Board of Parole the relator owed the unexpired portion of his original sentence from the date of the delinquency. Correction Law s 218, Consol.Laws c. 43. He could not be compelled to serve the additional time between the date of his release on parole and the date as of which he was declared...