Opinion
July 7, 1955.
Appeal from Supreme Court, Washington County, New York.
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
The relator was sentenced to prison in the Kings County Court on October 21, 1942, to an indeterminate term of five to ten years. He was entitled to sixty-two days credit for time served in jail. The maximum date of this sentence would have been August 20, 1952. The relator was released on parole before the actual period of the minimum term had run. This was on September 16, 1946, which was a little over four years time served when credit is given for the sixty-two days spent in jail. The time was shortened below the minimum sentence by virtue of a reduction of sentence allowed in favor of the relator for good conduct under subdivision 2 of section 230 Correct. of the Correction Law, as it then read. While relator was on parole he was convicted of another felony on November 5, 1947, and under the terms of the statute he was thereupon required first to serve "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". (Correction Law, § 219.) The respondent calculates the "portion remaining" of the first maximum term at the time of relator's parole on September 16, 1946, as then having been five years, eleven months and four days. On this basis he computes the time to be served running to October 14, 1953, before the second sentence began to run. It is argued in the relator's brief, although he does not clearly show the facts in the record before us, that there was an actual allowance of reduction on the first minimum term under section 230 entered on the record to his credit some period before he was paroled, and that, with this credit reducing the minimum term to the point where it had been entirely served, he had begun actually to serve a portion of the maximum term before his parole on September 16, 1946. This is not demonstrated in the papers before us; and would in any event not be available in habeas corpus until an absolute right to release accrued by serving all of the maximum of the first term less such credit as might thus be credited to that maximum; and by serving also all of the maximum of the second term. Habeas corpus is available only when a right to discharge is shown. ( People ex rel. Florance v. Fay, 109 N.Y.S.2d 471.) It could be considered by the Board of Parole, however, in determining when relator is eligible for consideration for parole on the second sentence. ( Sherwood v. Murphy, 123 N.Y.S.2d 360.) If the credit given on the original sentence actually ended the minimum before parole began, the time served after that should be credited against the original maximum. ( People ex rel. Fershing v. Wilson, 174 Misc. 191, revd. on other grounds, 259 App. Div. 957.) If the credit allowed was coincidental with the release on parole so that the minimum had ended at the same time parole began, the relator is not entitled to the credit for good conduct against the maximum sentence. The "reduction" is on the minimum sentence (§ 230) and on a new conviction the time to be served is on the "portion remaining" of the maximum sentence, which in this case was ten years. It was only if the minimum as reduced was actually served and relator began serving a portion of the maximum because of a delayed parole that credit on the maximum would be weighed into consideration. There is no substance to relator's argument that he could not be required to serve the remaining part of the original maximum before starting the new sentence on the second conviction. That is what the statute says he is required to do. ( People ex rel. Mercurio v. Morhous, 269 App. Div. 796; People ex rel. Johnson v. Morhous, 267 App. Div. 932.) Order dismissing the writ of habeas corpus unanimously affirmed, without costs.