Opinion
November 29, 1949.
Appeal from Supreme Court, Clinton County.
Present — Foster, P.J., Brewster, Deyo, Santry and Bergan, JJ.
On May 29, 1919, the relator was convicted as a second offender of the crime of robbery, first degree, and sentenced to a definite term of nineteen years, six months He was released by Governor's commutation on May 20, 1929, after having served ten years, one month and nineteen days. One of the conditions of his release on parole provided that if he should, during the period between his release and the expiration of his full term, be convicted of a felony, he would, in addition to the sentence imposed for such felony and before beginning the service of such sentence, be compelled to serve the remainder of his first term. Relator violated the condition of his commutation by the commission of a third felony for which he was sentenced on November 18, 1936, for a definite term of fifteen years, and he has been compelled to serve the full remainder of his first term. It appears that at the time of the return of habeas corpus at Special Term relator was restrained under a lawful judgment based upon his conviction of a third felony. The Special Term was, therefore, required to dismiss the writ. ( People ex rel. Sedlak v. Foster, 299 N.Y. 291. ) Moreover, on the merits the relator failed to make out a case. The Governor was authorized to impose the condition in the commutation mentioned and relator was bound thereby. (Former Prison Law, § 243; People ex rel. Mongno v. Lawes, 225 App. Div. 193. ) Order unanimously affirmed.