Opinion
July 7, 1955.
Appeal from Supreme Court, Washington County.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
The relator was convicted on August 29, 1929, of attempted robbery in the second degree and was sentenced to an indeterminate term of eight and one-half years to seventeen years. He was released on parole April 15, 1935. While on parole, he committed the crime of armed robbery in the State of Massachusetts and, on April 29, 1936, was convicted and sentenced for that crime. Upon his release from the Massachusetts State Prison in December, 1952, he was returned to State prison in New York State, charged with owing over eleven years of delinquent time, pursuant to section 219 Correct. of the Correction Law. Section 219 Correct. of the Correction Law provides that "If any prisoner * * * while on parole from a state prison, shall commit a crime under the laws of another state, government or country which if committed within this state would be a felony, and if he shall be convicted of such crime, he shall upon being returned to this state be compelled to serve in state prison the portion remaining of the maximum term of the sentence on which he was released on parole from the time of such release on parole until the expiration of such maximum". This provision was added to section 219 by chapter 426 of the Laws of 1931, in effect July 1, 1931. The relator contends that this provision is ex post facto as to him because he was sentenced prior to the enactment of this provision. However, he was paroled after the provision went into effect and his parole was expressly made subject to its terms. A law changing the conditions of parole, passed after the date of sentence but prior to the date of parole, is not an ex post facto law ( People ex rel. Kleiman v. Martin, 269 App. Div. 811, and the authorities therein cited). While the operation of section 219 Correct. of the Correction Law in this case produces a harsh result, the statute is mandatory in its terms and neither the Parole Board nor this court has any discretion with respect to its application. The harshness of section 219 has been somewhat mitigated by the 1954 amendment (L. 1954, ch. 518), which provides that a prisoner may become eligible for parole after having served five years of delinquent time under the section. The only possibility of an earlier release of the appellant, under the existing statutes, lies in an application to the Governor. Order unanimously affirmed, without costs.