People ex rel. Henderson v. Casscles

CourtUnited States State Supreme Court (New York)
Writing for the CourtJOSEPH F. GAGLIARDI
Citation66 Misc.2d 492,320 N.Y.S.2d 99
Decision Date28 March 1971
PartiesPEOPLE 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.

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.

Page 101

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

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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[66 Misc.2d 493] 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

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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 [66 Misc.2d 494] 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...

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11 practice notes
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • 18 Noviembre 1994
    ...434, 437 n. 2, 457 N.Y.S.2d 488; see also, Application of Siveke, 110 Misc.2d 4, 441 N.Y.S.2d 631; People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99; CPLR 7001). As such, the procedures in Article 4 of the CPLR for "special proceedings" apply to habeas corpus p......
  • Soto v. New York State Bd. of Parole
    • United States
    • New York Supreme Court — Appellate Division
    • 14 Enero 1985
    ...817; Parsons v. Department of Transp. of State of N.Y., 74 Misc.2d 828, 830-831, 344 N.Y.S.2d 19 People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 496-497, 320 N.Y.S.2d In my view, section 259-i (subd. 3, par. cl. ) of the Executive Law imposes a continuing statutory duty on the board t......
  • Baker v. Schubin
    • United States
    • United States State Supreme Court (New York)
    • 5 Diciembre 1972
    ...raised by petitioner nor could it properly be considered in the absence of necessary parties (cf. People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99). However, the question raised which is apparently novel in this state is whether the court in the state of detention may e......
  • Rodriguez v. McMickens
    • United States
    • New York Supreme Court
    • 18 Septiembre 1986
    ...when a petitioner was seeking merely the performance of a ministerial act by the respondent, People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99 (Sup.Ct., Westchester County, 1971); Mtr. or Browne v. New York State Board of Parole, 10 N.Y.2d 116, 218 N.Y.S.2d 33, 176 N.E.2......
  • Request a trial to view additional results
11 cases
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • 18 Noviembre 1994
    ...434, 437 n. 2, 457 N.Y.S.2d 488; see also, Application of Siveke, 110 Misc.2d 4, 441 N.Y.S.2d 631; People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99; CPLR 7001). As such, the procedures in Article 4 of the CPLR for "special proceedings" apply to habeas corpus p......
  • Soto v. New York State Bd. of Parole
    • United States
    • New York Supreme Court — Appellate Division
    • 14 Enero 1985
    ...817; Parsons v. Department of Transp. of State of N.Y., 74 Misc.2d 828, 830-831, 344 N.Y.S.2d 19 People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 496-497, 320 N.Y.S.2d In my view, section 259-i (subd. 3, par. cl. ) of the Executive Law imposes a continuing statutory duty on the board t......
  • Baker v. Schubin
    • United States
    • United States State Supreme Court (New York)
    • 5 Diciembre 1972
    ...raised by petitioner nor could it properly be considered in the absence of necessary parties (cf. People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99). However, the question raised which is apparently novel in this state is whether the court in the state of detention may e......
  • Rodriguez v. McMickens
    • United States
    • New York Supreme Court
    • 18 Septiembre 1986
    ...when a petitioner was seeking merely the performance of a ministerial act by the respondent, People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99 (Sup.Ct., Westchester County, 1971); Mtr. or Browne v. New York State Board of Parole, 10 N.Y.2d 116, 218 N.Y.S.2d 33, 176 N.E.2......
  • Request a trial to view additional results

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