People ex rel. Rainone v. Murphy

• Decision Date: 31 May 1956
• Citation: 1 N.Y.2d 367,135 N.E.2d 567,153 N.Y.S.2d 21
• Parties: , 135 N.E.2d 567 The PEOPLE of the State of New York ex rel. Anthony RAINONE, Appellant, v. Robert E. MURPHY, as Warden of Auburn State Prison, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 21

153 N.Y.S.2d 21

1 N.Y.2d 367, 135 N.E.2d 567

The PEOPLE of the State of New York ex rel. Anthony RAINONE, Appellant, v. Robert E. MURPHY, as Warden of Auburn State Prison, et al Respondents.

Court of Appeals of New York.

May 31, 1956.

Joseph Aronstein, New York City, for appellant.

Jacob K. Javits, Atty. Gen. (Raymond B. Madden, Troy, James O. Moore, Jr., and Paul C. Reuss, Albany, of counsel), for respondents.

CONWAY, Chief Judge.

Relator, Anthony Rainone, was convicted upon a plea of guilty of grand larceny, second degree, in the County Court of Kings County, and was sentenced on March 29, 1944 to State prison for a term of not less than 7 years and not more than 10 years.

On September 26, 1949 relator was released on parole. On April 19, 1950 while he was out on parole, relator was alleged to have committed the Federal offense of transporting a motor vehicle in interstate commerce knowing the same to have been stolen. On June 26, 1950 the New York State Board of Parole issued a warrant for his arrest as a parole violator, alleging delinquency as of April 19, 1950 in conformity with that board's belief that he had committed the above-described Federal offense.

Under the Parole Board warrant, relator was arrested by the Parole Board authorities and jailed in a New York City prison on July 10, 1950.

Thereafter, relator was turned over to the Federal authorities by the Parole Board to answer the Federal charge pending against him and to stand trial upon such charge. He stood trial and on February 15, 1951 a verdict of guilty was returned. On that day he was again returned to the custody of the State Parole Board.

On February 21, 1951 relator was again returned to the Federal authorities for sentencing upon the Federal conviction he was sentenced to 4 years' imprisonment and after having then been returned to the custody of the State Authorities he was on May 8, 1951 once again turned over to the Federal authorities by the Parole Board this time to commence service of the sentence imposed by the Federal court.

After service of the Federal sentence and on March 24, 1954 relator was released from the Federal penitentiary into the custody of the State Parole Board, under its warrant, and was again returned to, and confined in, the New York City prison. On April 8, 1954 he was removed by the Parole Board to New York State prison.

The present writ of habeas corpus was sued out by relator in August of 1954 upon his claim that his State sentence had then expired. On October 5, 1954 the writ was sustained by the Cayuga County Court and relator was ordered discharged from the custody of respondent, the Warden of Auburn Prison. The Appellate Division, Fourth Department, reversed and the instant appeal followed.

On this appeal, relator contends that his State sentence continued to run during the time that he was in the custody of the Federal authorities and that, therefore, his State sentence expired on or before the date he sued out the present writ and that he is entitled to be discharged from the custody of respondent Warden. That is, relator, claims, while the respondent Warden denies, that relator is entitled to receive credit on his State sentence for the following described time:

(a) Time spent in the custody of the Federal authorities in connection with the then pending Federal charge, from the date on which he was initially delivered to such authorities to the date on which he was released on bail by the Federal authorities and taken into custody again by the State parole authorities (July 12, 1950 to August 2, 1950 a period of 20 days).

(b) Time spent in the Federal penitentiary under the Federal sentence (May 8, 1951 to March 24, 1954 a period of 2 years, 10 months, 16 days).

It is conceded that relator is entitled to no credit for the time while he was at large as a parole violator, i. e., from the date of delinquency to the date of his arrest by the State parole authorities April 19, 1950 to July 10, 1950. See Correction Law, § 218; People ex rel. Dote v. Martin, 294 N.Y. 330, 333, 62 N.E.2d 217, 218.

The State Department of Correction has credited relator with 7 years, 7 months and 17 days jail time toward his 7 to 10 year State sentence. If, in addition, relator were to receive credit for the time he spent in the Federal penitentiary serving the Federal sentence, he would have, as of October 5, 1954, a total credit of 10 years, 6 months and 3 days or 6 months and 3 days more than the maximum term of 10 years to which he was sentenced by the State court. On the other hand, if relator were not entitled to credit for the time spent in the Federal penitentiary, he would have, as of October 5, 1954, a total credit of 7 years, 7 months and 17 days or credit for less than the maximum time required to be served under the State sentence. It is manifest, therefore, that we need not decide whether relator was entitled to the 20-day credit claimed by him but need only decide whether he was entitled to the time spent in the Federal penitentiary, viz., 2 years, 10 months and 16 days.

When relator violated the conditions of his parole by committing a Federal offense he interrupted or stopped the running of his State sentence (see Correction Law, § 218). However, his sentence began to run once again when he was taken into custody by the parole authorities. Relator did not himself, thereafter, commit any act to interrupt its running. Accordingly, what we must decide is whether the Parole Board, by its act of surrendering relator to the Federal authorities to serve the Federal sentence, was capable of stopping the running of his State sentence.

Before reaching that question, however, we think it advisable to mention the fact that the surrender of relator for the purpose of serving the Federal sentence before completing the State sentence was not required by any rule of comity. Fundamentally, a State or the Federal Government has jurisdiction only over persons who are within its respective territory, and thus subject to the mandates of its courts. A criminal prosecution, in order to be effective in legal contemplation, demands that the person to be prosecuted be present. A person, who happens to be, at a given time, subject to prosecution by more than one government, cannot be in more than one place at the same time. Thus, in aid of the vindication of its respective laws, in the spirit of intergovernmental courtesy and co-operation, it is found expedient that there exist, between and among governments, a reciprocal comity and pact of mutual assistance so that due and orderly procedure may be promoted. In pursuance thereof, a government may and should surrender a person to the jurisdiction of another for the purpose of trial. This should be done within a reasonable...