Citation Numbers: 174 Misc. 1048
Judges: Hinkley
Filed Date: 9/16/1940
Status: Precedential
Modified Date: 1/12/2023
Relator was convicted on November 16, 1932, of an attempted extortion. The maximum penalty for a conviction of extortion in violation of subdivisions 1, 2, 3 or 4 of section 851 of the Penal Law is fifteen years. If the facts bring the case within subdivisions 5 or 6 of the section, then the maximum is twenty years. (Penal Law, § 852.)
The jury’s recommendation for leniency and the expressed desire of the court to deal leniently became ineffective upon relator’s sentence to Elmira Reformatory. For the confinement of the relator rested with the reformatory authorities and the Parole Board up to but no farther than the maximum provided by law. (Correction Law, § 293.) Relator was transferred from Elmira Reformatory to a State prison and the Parole Board has fixed his time of release beyond the maximum provided by law. This is based upon the Parole Board’s interpretation that the maximum is ten years. Such interpretation is illegal and improper. The jurisdiction of the Parole Board to continue the incarceration of a prisoner ceases at the expiration of the maximum fixed by statute for the crime of which he was convicted. The Board’s authority is limited by the verdict, the sentence and the statute in this case to seven and one-half years. Upon the return of this writ, the court was requested to delay its decision pending the procuring of further records concerning defendant’s conviction. Such records
The form of this decision is authorized by People ex rel. Romano v. Brophy (280 N. Y. 181; Id. 707). The writ is sustained and relator ordered discharged from custody immediately or at the expiration of seven and one-half years from the date of sentence, less time allowed provided by law unless sooner discharged by the proper State authorities. This court merely declares that the maximum term of relator’s sentence is seven and one-half years.