Opinion
March 16, 1949.
Present — Taylor, P.J., Love, Vaughan, Kimball and Piper, JJ.
Order affirmed, without costs of this appeal to either party. Memorandum: Relator was convicted of the crime of robbery, second degree, in the Court of General Sessions and sentenced to Elmira Reformatory to a term which was equivalent to an indeterminate term the maximum of which was fifteen years. He was received in Elmira March 8, 1929 and paroled on December 20, 1930; he was declared delinquent on July 30, 1936, at which time he had seven years, six months and nineteen days of his original sentence still to serve. He was again convicted by the Court of General Sessions of attempted robbery, third degree, and on December 21, 1936, was sentenced to Sing Sing Prison. On December 26, 1936, the Commissioner of Correction issued an order directing his transfer from Elmira Reformatory to Sing Sing Prison. The validity of this order was not affected because he was not physically in Elmira Reformatory ( People ex rel. Coppola v. Brophy, 254 App. Div. 641). The law in effect at the time relator was returned to prison, and not the law as it was when he was originally sentenced, is controlling on the question of his transfer from Elmira Reformatory. ( People ex rel. Schuyler v. Brophy, 256 App. Div. 1045; Matter of Magistro v. Wilson, 253 App. Div. 48; People ex rel. Kurzynski v. Hunt, 250 App. Div. 378, motion for leave to appeal denied 275 N.Y. 652.) Relator was properly held to serve the unexpired portion of his previous sentence before beginning his new sentence. ( Matter of Magistro v. Wilson, 253 App. Div. 48, supra.) All concur. (The order dismisses a writ of habeas corpus and remands relator to the custody of defendant.)