People ex rel. Petite v. Follette

• Decision Date: 20 February 1969
• Citation: 298 N.Y.S.2d 950,246 N.E.2d 722,24 N.Y.2d 60
• Parties: , 246 N.E.2d 722 The PEOPLE of the State of New York ex rel. John R. PETITE, Respondent, v. Harold W. FOLLETTE, and Warden of Green Haven Prison, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 950

298 N.Y.S.2d 950

24 N.Y.2d 60, 246 N.E.2d 722

The PEOPLE of the State of New York ex rel. John R. PETITE, Respondent, v. Harold W. FOLLETTE, and Warden of Green Haven Prison, Appellant.

Court of Appeals of New York.

Feb. 20, 1969.

Louis J. Lefkowitz, Atty. Gen. (Joel H. Sachs and Samuel A. Hirshowitz, New York City, of counsel), for appellant.

Martin L. Brothers, New York City, for respondent.

JASEN, Judge.

On October 22, 1965, petitioner was convicted of a felony and sentenced to serve 1 1/4 to 2 1/2 years in Green Haven State Prison. He was thereafter paroled. In December, 1966, while on parole, petitioner fraudulently used a credit card and, as a result, the Parole Board declared him a delinquent on December 8, 1966. Pursuant to a parole violation warrant, he was taken into custody on December 15, 1966 by officers of the State Parole Division. A few hours later petitioner was delivered to the New York City police who charged him with forgery and petit larceny. On December 20, 1966, petitioner pled guilty to petit larceny and was sentenced to a four-month term in the New York City Workhouse. Petitioner served this misdemeanor sentence and was then turned over to the appellant Warden to serve the unexpired term of his previous State felony sentence.

Petitioner brought this proceeding to compel the Warden to credit the four months served on the misdemeanor sentence against his sentence remaining on the felony conviction. Special Term granted the petition and directed the Warden to credit petitioner for the time served in the New York City Workhouse. The Appellate Division unanimously affirmed.

As a general rule, when a prisoner is committed to prison, his sentence begins to run and continues until it has been fully served, less any reduction in sentence. (Correction Law, Consol.Laws, c. 43, §§ 230, 230--a.) After he has been imprisoned for the minimum term of his sentence the Parole Board may ameliorate the conditions of his sentence by allowing him to serve the remainder of it outside the walls of the prison on parole. (Correction Law, § 212.) While a prisoner is on parole, his sentence continues to run until its maximum term has expired. However, if a prisoner commits some violation of the conditions of his parole, and the Parole Board declares him a parole delinquent, the running of his sentence is halted until his return to prison where he may be required to serve the maximum amount of his sentence remaining, dating from the time of his act of delinquency. (Correction Law, §§ 218, 219.)

The crux of the problem in this case is to determine when, after petitioner was declared delinquent, the resumption of the service of his sentence began.

Since 1956, People ex rel. Rainone v. Murphy, 1 N.Y.2d 367, 153 N.Y.S.2d 21, 135 N.E.2d 567 has been regarded as the controlling decision in this area. In that case, when it was learned that the parolee had transported stolen goods over State lines, he was declared a parole delinquent under the former section 218 of the Correction Law and arrested on a parole violation warrant. He was temporarily incarcerated in the Tombs City Prison in New York City. The Parole Board surrendered him to Federal authorities to stand trial for the above-mentioned crime and, after he was found guilty, he was remanded to State authorities and returned to the Tombs. He was again surrendered to the Federal authorities for sentencing, and then returned to the custody of the Parole Board. Finally, the board delivered him to Federal authorities to serve his four-year sentence for transporting stolen goods. After his Federal sentence was completed, the parolee was returned to State custody. He then sought a writ of habeas corpus, contending that he should receive credit against his remaining State sentence for the time served in Federal prison.

This court reversed the Appellate Division and ruled that the credit requested must be given. Chief Judge CONWAY, writing for the majority of the court, noted that section 2188 of the former Penal Law and section 470--a of the Code of Criminal Procedure prohibit a court or Judge from interrupting a prisoner's sentence after it has commenced. From this the court concluded that the Legislature did not intend to confer the power to interrupt a sentence on the Parole Board. The court reasoned that a parolee could, by his own act of delinquency, interrupt the running of his sentence, byt that his sentence resumed running when he was returned to the custody of the Parole Board--regardless of what the Parole Board did with him after initially regaining custody.

In 1960, the Legislature substantially amended the language of section 218 of the Correction Law (L.1960, ch. 473) to provide that a declaration of delinquency by the Parole Board shall interrupt a prisoner's sentence as of the date of such delinquency notwithstanding section 470--a of the Code of Criminal Procedure and section 2188 of the former Penal Law, and that such interruption shall continue until the prisoner's return 'to an institution under the jurisdiction of the commissioner of correction.'

The amendment destroys the underlying hypothesis of Rainone. Under the amended section 218 the Parole Board...