Summary
In Matter of Grix v Regan (57 A.D.2d 710) the petitioner's imprisonment continued after the expiration of his more recent sentence, even though no violation of parole had been charged against him with respect to his prior sentence; he was clearly entitled to be released on parole.
Summary of this case from Matter of Smith v. Chairman of the N.Y. StateOpinion
April 7, 1977
Present — Moule, J.P., Cardamone, Simons, Dillon and Witmer, JJ. (Order entered Feb. 25, 1977.)
Motion for reargument granted, decision and order of January 14, 1977 vacated, and judgment unanimously affirmed. Memorandum: Respondents appeal from a judgment of the Supreme Court, Wyoming County, entered July 30, 1975 in an article 78 proceeding directing them to offer petitioner his conditional release forthwith. Because the new sentence which had been imposed upon petitioner on September 11, 1973, with a maximum of three years' imprisonment, expired before the appeal was heard, we erroneously dismissed the appeal as moot; and so we entertain the motion for reargument. The pertinent facts are as follows: In 1956 petitioner pleaded guilty to murder, second degree, and was sentenced to an indeterminate term of 20 years to life imprisonment. In 1972 he was released on parole. In March, 1973 he was arrested for a new crime, and on his plea of guilty of illegal possession of a gun, he was sentenced in September, 1973 to an indeterminate term with a maximum of three years. Since petitioner's sentence for his 1973 crime has expired and it not appearing from the record that any violation of his 1972 parole under his life sentence has ever been charged against him, petitioner is entitled to immediate restoration to parole under his 1956 sentence.