People ex rel. Poole v. Casscles

• Decision Date: 01 June 1971
• Citation: 322 N.Y.S.2d 385,37 A.D.2d 575
• Parties: The PEOPLE, etc., ex rel. Robert POOLE, Appellant, v. CASSCLES, Superintendent of the Ossining Correctional Facility, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 385

322 N.Y.S.2d 385

37 A.D.2d 575

The PEOPLE, etc., ex rel. Robert POOLE, Appellant, v. CASSCLES, Superintendent of the Ossining Correctional

Facility, Respondent.

Supreme Court of New York, Appellate Division,

Second Department.

June 1, 1971.

Bernard Margolis, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. of the State of New York, Albany, for respondent. Samuel A. Hirshowitz, First Asst. Atty. Gen., Iris A. Steel, Asst. Atty. Gen., of counsel.

Before MARTUSCELLO, Acting P.J., and LATHAM, BENJAMIN and GULOTTA, JJ.

MEMORANDUM BY THE COURT.

In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Westchester County, entered September 2, 1970, which dismissed the writ.

Judgment affirmed, without costs. No opinion.

MARTUSCELLO, Acting P.J., and LATHAM and BENJAMIN, JJ., concur.

GULOTTA, J., dissents and votes to reverse the judgment and to credit relator with the jail time in question, with the following memorandum, in which CHRIST, J., concurs:

Section 487 of the Code of Criminal Procedure requires that, upon sentencing, a prisoner be delivered 'forthwith' to the proper officer to begin execution of sentence.

Relator was arrested and indicted in Suffolk County in January, 1969 for felonious possession and sale of a dangerous drug. In April, 1969, he was released on bail. Thereafter, in May, 1969, he was arrested for robbery in Bronx County and remanded to the Bronx House of Detention to await trial. On August 26, 1969, a writ of habeas corpus ad prosequendum was issued by a Justice of the Supreme Court, Suffolk County, directing the authorities of the Bronx House of Detention to bring relator to Suffolk County for trial on August 27, 1969 in connection with the prior felony. The writ provided that after completion of the proceedings in Suffolk County the prisoner was to be 'remanded to the place from whence he came'.

On September 22, 1969, relator was sentenced by the Supreme Court, Suffolk County, to an indeterminate term of up to four years in Sing Sing Prison and committed to the custody of the State Department of Correction for execution of sentence. However, he was not remanded to the custody of Department of Correction officials at Sing Sing, but was instead sent back to the Bronx House of Detention to await trial in Bronx County.

In April, 1970, he was convicted, upon his plea of guilty, and remanded to Sing Sing Prison. He received no credit for this seven-month period served in Bronx County toward his Suffolk County sentence, since subdivision 3 of section 70.30 of the Penal Law allows credit only for time served before sentence. Further, it is claimed that his Suffolk County sentence did not begin to run, since former section 231 of the Correction Law (since repealed) provided that a term of imprisonment shall begin when a prisoner is actually incarcerated in a State prison or penitentiary.

In my opinion, such a result is unjust and inequitable. Former section 231 of the Correction Law was repealed by the Laws of 1970 (ch. 476, § 45) retroactively to the effective date of the present Penal Law (September 1, 1967), with an exception not here relevant. In any event, that section must be read in light of the mandate of section 487 of the Code of Criminal Procedure, which provides that, upon sentencing, a prisoner shall be delivered 'forthwith' to the proper officer, and section 489 of the Code, which places a duty upon the sheriff to deliver the body of the defendant to the keeper of the prison where he is to be imprisoned.

Here, in apparent reliance upon the prior writ, the sheriff ignored the mandate of the order of commitment to deliver relator to Sing Sing Prison and delivered him instead to the Bronx House of Detention, thereby preventing execution of sentence. The writ of habeas corpus ad prosequendum, issued August 26, 1969, was superseded by the order of commitment of the same court dated September 22, 1969; and the former therefore gave the sheriff no authority to relinquish custody over relator to Bronx County authorities in...