Opinion
May 28, 1938.
Millard Greene, for the relator.
John J. Bennett, Jr., Attorney-General, for the respondent.
The crime of which the relator has been convicted was committed on February 13, 1936. On March 6, 1936, section 1941 of the Penal Law was amended (Laws of 1936, chap. 70) to provide for an indeterminate sentence of a second offender. At the time the crime was committed, section 1941 provided for a determinate sentence for a second offender. The relator pleaded guilty April 8, 1937, and was sentenced to an indeterminate term of not less than two and a half years nor more than five years. Under the law as it was at the time of the commission of the crime, he might have received any sentence up to five years, and been free from parole at the end of his term which might have been less than five years. Under the amendment of March 6, 1936, even though he be released before the expiration of five years, yet he would remain on parole for the portion of the five years not served. Under the decision of the United States Supreme Court in Lindsey v. Washington ( 301 U.S. 397) it is apparent that the amendment of March 6, 1936, is ex post facto as to this crime, since that doctrine looks to the standard of punishment rather than to the sentence actually imposed, and the removal of the possibility of a sentence of less than five years, at the end of which he would have been free from parole, is to his detriment and more onerous than the old law. The writ is, therefore, sustained and the warden of Sing Sing Prison is directed to return the relator to the Court of General Sessions of New York County for proper sentence.