People ex rel. Roy v. Murphy

• Decision Date: 29 October 1962
• Citation: 36 Misc.2d 501,233 N.Y.S.2d 282
• Parties: The PEOPLE of the State of New York ex rel. Edmond E. ROY, Relator, v. Robert E. MURPHY, Warden of Auburn State Prison, Auburn, New York, Respondent.
• Court: New York Supreme Court

Page 282

233 N.Y.S.2d 282

36 Misc.2d 501

The PEOPLE of the State of New York ex rel. Edmond E. ROY, Relator, v. Robert E. MURPHY, Warden of Auburn State Prison, Auburn, New York, Respondent.

Supreme Court, Trial and Special Term, Cayuga County.

Oct. 29, 1962.

Edmond E. Roy, pro se.

Louis J. Lefkowitz, Atty. Gen., William S. Elder, Jr., Auburn, of counsel, for respondent.

DANIEL E. MACKEN, Justice.

This proceeding is considered by me as one brought pursuant to Article 78 of the Civil Practice Act to require respondent to release the petitioner subject to the supervision of the Board of Parole in accordance with the provisions of Section 230(4) of the Correction Law as effective July 1, 1962.

On November 18, 1953 petitioner was sentenced to imprisonment for a term of not less than five nor more than ten years. He was paroled January 14, 1959, violated his parole, was declared delinquent as of July 9, 1960 and returned to prison on October 14, 1960. By reason of time lost between the date of delinquency and his return to custody, the maximum term imposed by the court will not expire until December 1, 1963.

At a meeting of the Parole Board held pursuant to Section 218 of the Correction Law following his return to prison, an order was made directing that petitioner be again presented to the Parole Board in September of 1962. Following a meeting held September 20, 1962 a decision was made that the petitioner be held and again presented at the March 1963 meeting of the Board with the provision, however, that if a satisfactory program could be arranged, he might be released on or after October 29, 1962.

Subdivision 4 of Section 230 of the Correction Law, which became effective July 1, 1962, provides that a prisoner serving an indeterminate term 'may receive, for good conduct and efficient and willing performance of duties assigned, a reduction of his sentence not to exceed two days for each month of the maximum term. For meritorious progress and achievement in a treatment program to which he has been assigned, * * * such prisoner may also receive a reduction of his sentence not to exceed three additional days for each month of the maximum term.'

The statute provides that 'The maximum reduction of sentence provided for in this subdivision, or any part thereof, may be granted, withheld, forfeited or restored subject to rules and regulations which the commissioner of correction is hereby authorized to promulgate and enforce. Nothing contained herein shall be construed to confer upon any prisoner the right to demand or require the whole or any part of such reduction of maximum sentence.'

Among the rules promulgated by the Commissioner of Correction and numbered 'III(8)' is the following: 'Prisoners who have been paroled, declared delinquent and returned to prison, may receive the benefits of the maximum reduction credit computed on the delinquent time only.' (7 NYCRR, § 60.3, subd. [h].)

At the time petitioner was declared delinquent and returned to prison he owed three years, one month and seventeen days on his maximum sentence and in accordance with Rule III(8) he has been credited with a reduction of six months and eight days of his maximum sentence which, unless forfeited in the meantime, might permit his release pursuant to Section 230(4) on May 23, 1963 if that section is applicable to him. The petitioner contends that Rule III(8) is invalid. If credited with the full reduction of maximum sentence which he would have earned, absent Rule III(8), he would have been eligible for release subject to the supervision of the Parole Board on August 4, 1962, again provided Section 230(4) was operative to mandate his release at that time. The petitioner claims that his release at that time was mandatory and that he is now entitled to immediate release.

It seems to me that two distinct questions are here presented: first, whether the Commissioner's Rule III(8) is valid and, second, whether Section 230(4) mandates the release of a parole violator who has earned sufficient 'good time' under the provisions of that section to permit his release but who at the time is being held pursuant to a determination of the Parole Board following his violation of parole. Since my view of the latter question will be determinative of this proceeding, I shall first consider it.

The Department of Correction and the Division of Parole are separate and independent agencies of the Executive Department (Correction Law, Art. 2; Executive Law, Art. 12), each with separate functions and powers to execute them.

The period of confinement, up to the maximum imposed by the court, of a prisoner serving an indeterminate term who has completed his minimum term, is for all practical purposes determined by the Parole Board (Correction Law, § 212). Once having been paroled and returned to prison for violation of the conditions of parole, the period of further confinement is determined by the Parole Board pursuant to Section 218 of the Correction Law, and after a hearing at which the prisoner must be given an opportunity to appear and be heard, the Board 'may, if it sees fit, require such prisoner to serve out in prison * * * the balance of the maximum term for which he was originally sentenced * * * or such part thereof as it may determine before again releasing such prisoner on parole'. In the absence of an express intent, and I find none such, I do not believe that Section 230(4) has the effect of countermanding or in any way altering determinations of the Parole Board made pursuant to Section 218 of the Correction Law. The incongruity of a contrary conclusion is demonstrated by the facts of this case from which it appears that if the petitioner's contention is correct, he should have been released on August 4, 1962 despite the fact that in September 1962, a month and a half later, the Parole Board determined that suitable conditions warranting his release did not then exist.

Prior to the enactment of Section 230(4), while a prisoner serving a definite sentence might, by earned 'good time', have his sentence reduced and be released subject to the supervision of the Parole Board (Correction Law, §§ 230, 242), a prisoner serving an indeterminate sentence and who had never been paroled was required to serve the full maximum term imposed by the court regardless of his conduct while in prison. (People ex rel. Clemente v. Warden, 9 N.Y.2d 216, 213 N.Y.S.2d 55, 173 N.E.2d 784.) In his memorandum approving the 1962 amendment of Section 230 (McKinney's Session Laws of New York, 1962, p. 3668) the Governor said:

'Under existing law only the minimum term of an indeterminate sentence may be reduced by time allowed for good behaviour. Such reduction of the minimum term enables a prisoner to become eligible for parole at an earlier date but does not guarantee his release at any time prior to...