People ex rel. Rainone v. Murphy

• Decision Date: 29 December 1955
• Citation: 147 N.Y.S.2d 197,1 A.D.2d 754
• Parties: The PEOPLE of the State of New York ex rel. Anthony RAINONE, Respondent, (Relator), v. Robert E. MURPHY, Warden of Auburn State Prison, Auburn, N. Y., (Respondent) and the People of the State of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 197

147 N.Y.S.2d 197

1 A.D.2d 754

The PEOPLE of the State of New York ex rel. Anthony RAINONE Respondent, (Relator), v. Robert E. MURPHY, Warden of Auburn State Prison, Auburn, N Y., (Respondent) and the People of the State of New York, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 29, 1955.

Jacob K. Javits, Atty. Gen. (William S. Elder, Jr., Asst. Atty. Gen., of counsel), for appellant.

Joseph Aronstein, New York City, for respondent.

Before McCURN, P. J., and VAUGHAN, KIMBALL, WHEELER and VAN DUSER, JJ.

PER CURIAM.

Both parties agree that the sole issue here is whether or not relator was serving his state sentence of ten years concurrently with the federal sentence, the period being May 8, 1951 until March 24, 1954. During this period, although a New York State parole violator, he was confined at Leavenworth under a sentence imposed on February 21, 1951, under a conviction in the U. S. District Court, Eastern District. Penal Law, § 2193, subd. 2, which relator contends requires such a result, does not aid him. That Section credits a parole violator with all time spent in a place of detention 'by virtue of his arrest as a parole violator'. This he has received. His confinement as Leavenworth was not for such but for committing a federal crime. Carney v. New York State Department of Correction, 278 App.Div. 1018, 105 N.Y.S.2d 1009. Relator himself interrupted the service of his state sentence by violating the conditions of his parole. See Zerbst v. Kidwell, 304 U.S. 359, 361, 58 S.Ct. 872, 82 L.Ed. 1399. State and federal sentence, being sentences of confinement to two different places, do not run concurrently. People ex rel. Hesley v. Ragen, 396 Ill. 554, 72 N.E.2d 311; Ex parte Sichofsky, 201 Cal. 360, 257 P. 439, 53 A.L.R. 615; Ex parte Huber, 334 Mich. 100, 53 N.W.2d 609; Ex parte Chadwick, 155 Tex.Cr.R. 410, 236 S.W.2d 128; Penal Law, § 2190. In turning over relator to the federal authorities, the New York State Board of Parole did not lose its right to thereafter proceed against him as a parole violator. Carney v. New York State Department of Correction, supra; People ex rel. Gariti v. Brophy, 255 App.Div. 823, 7 N.Y.S.2d 19; People ex rel. Costanza v. Martin, 261 App.Div. 1034, 26 N.Y.S.2d 5; People ex rel. Zakowicki v. Morhous, 285 App.Div. 311, 313, 136 N.Y.S.2d 353, 354.

Order reversed on the law without costs of this appeal to any party, writ dismissed, and relator remanded to the custody of the...