Opinion
January 12, 1967
Appeal from the Erie County Court.
Present — Bastow, J.P., Goldman, Henry, Del Vecchio and Marsh, JJ.
Order unanimously reversed and matter remitted to Erie County Court for a hearing. Memorandum: This is an appeal from an order denying appellant's application for a writ of error coram nobis without a hearing. In 1954, while on parole from a sentence for a prior felony, appellant committed the felony for which he was sentenced as a second offender to a term of 15 to 20 years. At that time, section 219 Correct. of the Correction Law required that the prisoner first serve the remaining portion of the maximum term of the sentence on which he was paroled. Section 218 Correct. of the Correction Law provided that the second sentence was deemed to commence and run concurrently after the prisoner served 5 years of his delinquent time. Sections 219 and 218 were amended in 1960 to make the service of delinquent time permissive rather than mandatory. Thereafter the Commissioner of Correction reviewed the sentence of all prisoners and directed that parole violators whose delinquent time would have expired on or before July 1, 1960, the effective date of the amendment, be deemed to have commenced service of the new sentence on that date. In Matter of Mulligan v. Murphy ( 14 N.Y.2d 223) this procedure was approved and section 219 was held to have no retroactive application. In such circumstances, the appellant would not be eligible for parole until he has served at least 10 years. (Correction Law, § 211; Penal Law, § 1944). There is some indication in the record that the court believed that the defendant would immediately be eligible for parole at the time of the resentence. On this record we cannot determine that a misunderstanding of the application of section 219 Correct. of the Correction Law did not affect the sentence and for that reason a hearing should be held before the Judge who pronounced the resentence.