Opinion
December 20, 1956
Relator appeals from an order of the County Court of Clinton County, which dismissed a writ of habeas corpus and remanded relator to the custody of the warden of Clinton Prison. Relator was convicted of manslaughter in the second degree in the Court of General Sessions of the County of New York and sentenced on January 10, 1945, as a second offender to an indeterminate term of 7 1/2 minimum to 30 years maximum. The court suspended the execution of the sentence and placed the relator on probation. Later relator was given permission to go to the State of Texas. He was finally arrested in the State of Louisiana and held for the New York authorities as a probation violator. On January 7, 1947, relator was again taken before the Court of General Sessions in New York County, the suspension of the previous sentence and probation was revoked, and he was committed for the term of 7 1/2 to 30 years. (Code Crim. Pro., § 470-a.) Relator seems to contend, as we understand it, that because he was not convicted of a felony while he was on probation he could not be charged with a violation of his probation, was not a fugitive, and could not be extradited. It is unnecessary to go into the details of the probation violation, because on the return of this writ of habeas corpus it appeared without dispute that relator was held by the warden of Clinton Prison by virtue of a final judgment of a competent tribunal having jurisdiction of the relator and of the crime charged, and that his term had not expired. Upon those facts alone the writ was of necessity properly dismissed. ( People ex rel. Lee v. Jackson, 285 App. Div. 33, affd. 309 N.Y. 676.) Order affirmed. Foster, P.J., Bergan, Coon and Gibson, JJ., concur.