People ex rel. Kipnis v. McCann , 39 N.Y. Crim. 315 ( 1921 )

Davis, J.

Habeas corpus to inquire into the detention of the relator now imprisoned in the penitentiary. The relator was convicted in the Court of Special Sessions of the city of New York of the misdemeanor of impairing the morals of a child. Penal Law, § 483. He was sentenced January 5, 1920, under the Parole Commission Act (Laws of 1915, chap. 579, as amd. by Laws of 1916, chap. 287). The sentence was indeterminate, as required by the Parole Commission Act (§4). The relator has been imprisoned under this judgment for about twenty-one months. He contends that one year is the longest term he conld be required to serve, and that he is now unlawfully restrained of his liberty. The offense for which he was convicted, as stated above, is a misdemeanor. The penalty prescribed by law for this particular misdemeanor is not more than one year in the penitentiary or county jail, or a fine of not more than $500, or by both. There is no provision of the Parole Commission Act which gives that commission power to enlarge this term of imprisonment beyond the year provided by the Penal Law. The warden of the penitentiary has detained this relator far beyond the longest term (one year) provided by the Penal Law. For these reasons this writ should be sustained and the relator discharged. It is urged by the respondent that section 4. of the Parole Commission Act allows the detention of a prisoner for the period of three years. 'This three-year provision was intended to meet cases where defendants guilty of certain felonies were sentenced to a term in the penitentiary for more than one year and does not refer to misdemeanors. Writ sustained and relator discharged.

Ordered accordingly.