People ex rel. Henderson v. Casscles

• Decision Date: 28 March 1971
• Citation: 66 Misc.2d 492,320 N.Y.S.2d 99
• Parties: PEOPLE of the State of New York ex rel. Louis HENDERSON, Petitioner, v. Hon. J. L. CASSCLES, Superintendent of the Ossining Correctional Facility, Ossining, New York, Respondent.
• Court: New York Supreme Court

Page 99

320 N.Y.S.2d 99

66 Misc.2d 492

PEOPLE of the State of New York ex rel. Louis HENDERSON, Petitioner, v. Hon. J. L. CASSCLES, Superintendent of the Ossining Correctional Facility, Ossining, New York, Respondent.

Supreme Court, Westchester County.

March 28, 1971.

Leonard E. Lombardi, Hartsdale, for petitioner.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, by Barton R. Sadowsky, New York City, for respondent.

JOSEPH F. GAGLIARDI, Justice.

Application for a writ of habeas corpus is denied without prejudice to a renewal at a time when petitioner would otherwise be able to be released or upon a renewal by means of an Article 78 proceeding.

The application herein raises the interesting question as to the legal significance of the phrase 'is subject' as it appears in the Penal Law (Penal Law § 70.30, subdivision 3), when peitioner is sentenced to time served on an unrelated charge while incarcerated in jail at all times on a pending charge which ultimately results in a conviction. Petitioner contends that he is entitled to jail time credit (sixty days) against the sentence he is now serving even if such credit inures to his benefit twice.

A brief recitation of the factual background is necessary to highlight petitioner's contention and to focus upon proper procedure in applications for jail time credit when a determination favorable to petitioner will not effect his release from prison.

Petitioner was arrested on November 11, 1969, and charged with a felony to which he pled guilty and was sentenced by the Supreme Court, New York County, on May 28, 1970, to an indeterminate term not to exceed three years. Petitioner had been incarcerated throughout this period in the Manhattan House of Detention and was transferred to the Ossining Correctional Facility on June 15, 1970. Prior thereto, and on November 17 and 18, 1969, separate warrants on different charges were lodged against petitioner. On January 26, 1970, petitioner was sentenced to time served as to the warrant lodged November 17, 1969. The second warrant was subsequently dismissed.

The commitment papers bear an endorsement by the Deputy Warden of the Manhattan House of Detention that petitioner is to receive 147 days jail time credit. It is clear that the Department of Correction of the City of New York through the Deputy Warden did not credit petitioner's three-year sentence for the sixty days time served sentence imposed on January 26, 1970, i.e., the period from November 17, 1969 through January 26, 1970. It is petitioner's contention that he should receive, in effect, double credit because he was never 'subject' to the retroactively imposed sentence within the meaning of the Penal Law. The issue is not free from doubt (see Janosko v. Kross, 27 Misc.2d 210, 207 N.Y.S.2d 197; cf. People ex rel. Petite v. Follette, 24 N.Y.2d 60, 298 N.Y.S.2d 950, 246 N.E.2d 722; Correction Law § 218). Nonetheless, the Attorney General opposes the application as being premature since a determination in favor of petitioner will not effect his release at this time. This argument has substantial merit.

Order cases had questioned the propriety of utilizing habeas corpus as a remedy to effect recomputation in jail time (see People ex rel. Melick v. Jennings, 132 Misc. 197, 199, 229 N.Y.S. 188, 189 (and cases cited)) and, although a conflict of authority appears in the early cases (see People ex rel. Kern v. McDonnell, Sup., 137 N.Y.S.2d 149 (habeas corpus does not lie); People ex rel. Manekos v. Noble, 26 Misc.2d 460, 207 N.Y.S.2d 501 (writ not questioned); People v. Romano, 5 Misc.2d 171, 165 N.Y.S.2d 917, app. dism. 284 App.Div. 878, 135 N.Y.S.2d 780 (habeas corpus proper)), the Court of Appeals has subsequently held that habeas corpus does not lie under similar circumstances (People ex rel. Reynolds v. Martin, 3 N.Y.2d 217, 165 N.Y.S.2d 26, 144 N.E.2d 20, cert. den. 355 U.S. 885, 78 S.Ct. 154, 2 L.Ed.2d 114). In Reynolds the Court passed upon the merits of the relator's contention, concerning credit for jail time served in a sister state jurisdiction, and agreed with his claim but affirmed the order dismissing the writ. Singnificantly, the Court stated '(t)his does not mean that the writ of habeas corpus is to be sustained, however, for in no event is relator entitled as a matter of right to be discharged from prison at this time' (3 N.Y.2d at 223, 165 N.Y.S.2d at 31, 144 N.E.2d at 25). Reynolds is clearly in accord with prior rulings in this State that an application prior to the expiration of a validly imposed portion of a sentence will be deemed as premature (People ex rel. Young v. Martin, 270 App.Div. 1069, 63 N.Y.S.2d 672, affd. 297 N.Y. 892, 79 N.E.2d 737). At bar no question is raised concerning the legality of the sentence other than the requested sixty day credit. Of course, once relator has served the validly imposed portion and would be able to obtain immediate release regarding his contention as to the sentence in excess thereof, the writ will lie (People ex rel. Tweed v. Liscomb, 60 N.Y. 559). In sum, the cases hold that the writ will be denied or dismissed, as the case may be, where the prisoner is legally detained even though there is a possibility that he will be unlawfully detained sometime in the future (7A Weinstein-Korn-Miller, N.Y.Civil Practice 7003.08, 7010.05; 25 N.Y.Jur., Habeas Corpus § 57).

Neither the rejection of the 'prematurity rule' in the federal jurisdiction (Peyton v. Rowe, 391 U.S. 54, 64, 88 S.Ct. 1549, 20 L.Ed.2d 426; see also Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554; Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215) nor the recent expansion in this jurisdiction of the grounds that may properly form a basis for inquiry through a writ (People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653; cf. People v. Schildhaus, 8 N.Y.2d 33, 36, 201 N.Y.S.2d 97, 98, 167 N.E.2d 640, 641) compels a different conclusion (see People ex rel. Wilder v. Markley, 26 N.Y.2d 648, 307 N.Y.S.2d 672, 255 N.E.2d 784). The fact that in the federal jurisdiction the writ is broader in scope does not impose upon the states obligations of a reciprocal nature (see Hopkins, 'Federal Habeas Corpus: Easing The Tension Between State and Federal Courts' 44 St. John's L.Rev. 660 (1970); cf. Paperno & Goldstein, Criminal Procedure In New York, §§ 471, 472 (1971 Revised ed.)). Furthermore, sufficient countervailing reasons exist proscribing the utilization of habeas corpus to achieve that which orderly procedure dictates be accomplished in another manner (People ex rel. Keitt v. McMinn, 18 N.Y.2d at 261, 273 N.Y.S.2d at 898, 220 N.E.2d at 654, Supra).

Writs of habeas corpus must be made returnable in the county where the relator is incarcerated (Mtr. of Hogan v. Culkin, 18 N.Y.2d 330, 274 N.Y.S.2d 881, 221 N.E.2d 546; Mtr. of Greene v. Supreme Court, 31 A.D.2d 649, 297 N.Y.S.2d 599 (2d Dept.)). In discussing the drawbacks of habeas corpus as contrasted with other post-conviction remedies one commentator has stated:

'* * * a habeas corpus proceeding brings in as the respondent a person who has no knowledge whatsoever of the circumstances underlying the conviction--namely, the warden of the state prison. He is represented by the Attorney General, a state official whose presence is not essential to the proper resolution of the case, and the practice is for the original prosecutor--the person most interested in sustaining the validity of the conviction--to appear only as amicus curiae. Thus, the Attorney General and the district attorney frequently duplicate each other's efforts and may sometimes get in each other's way.

'* * * since venue for habeas corpus is in the county of detention and state prisons are located in very few counties, there are, for all practical purposes, only a handful of courts available to consider such writs in criminal cases. There is something inherently unfair about burdening a few courts with applications for relief from mistakes committed by all of the criminal courts throughout the state. Moreover, it is only right that the alleged perpetrator of the error, the trial court, be given first crack at rectifying it' (Cohen, 'Post-Conviction Relief In The New York Court of Appeals: New Wine and Broken Bottles' 35 Brooklyn L.Rev. 1, 23--24 (1968) (footnotes omitted)).

While the author of the above commentary was analyzing habeas corpus from a viewpoint of trial court errors, the reasoning is apropos here, where the alleged error occurred at the trial level by the correction authorities. It is the duty of the New York City Commissioner of Correction to endorse the commitment papers with petitioner's jail time (CCP § 489--a). Such endorsement conclusively binds the Warden as to how much jail time credit to accord petitioner for incarceration prior to his receipt at state prison (People ex rel. Jackson v. Weaver, 279 App.Div. 88, 108 N.Y.S.2d 653; People ex rel. Hand v. Prison Board of Sing Sing, 191 App.Div. 127, 180 N.Y.S. 702 (2d Dept.); People ex rel. Kern v. McDonnell, Sup., 137 N.Y.S.2d 149; see People ex rel. Bishal v. Murphy, 17 N.Y.2d 897, 271 N.Y.S.2d 995, 218 N.E.2d 702). The Warden can only determine the duration of the sentence from the commitment papers and is not bound to know or inquire as to what transpired prior to receipt of the prisoner (People ex rel. Jackson v. Weaver, Supra) even if the endorsement on the papers is erroneous and in favor of the prisoner (People ex rel. Coates v. Martin, 8 A.D.2d 688, 184 N.Y.S.2d 443).

Consequently, petitioner's sole recourse at the present time is to commence an Article 78 proceeding in the nature of mandamus against the person charged with calculating his jail time credit which, in this case, is the Department of Correction of the City of New York (Mtr of Browne v. New York State Board of Parole, 10 N.Y.2d 116, 121, 218 N.Y.S.2d 33, 35, 176 N.E.2d 492, 494; People v. Nagler, 21 A.D.2d 490, 251...