Opinion
March 26, 1962
Proceeding by the Commissioner of Correction of the State of New York under article 78 of the Civil Practice Act, in the nature of mandamus, instituted in this court in the first instance, seeking the return of the respondent Gallo from a New York City penitentiary to Attica State Prison. On September 9, 1960, respondent Gallo was convicted in the County Court, Kings County, of a misdemeanor and sentenced to an indeterminate term in the New York City penitentiary. After commencing the service of that sentence, and pending appeals to this court and to the Court of Appeals from that judgment of conviction, he was released on bail under certificates of reasonable doubt. While at liberty, respondent Gallo committed felonies in New York County. For such felonies he was convicted on December 21, 1961 in the Court of General Sessions of the County of New York and sentenced to serve consecutive terms of three years and six months to seven years, and three years and nine months to seven years and six months. He immediately commenced serving that sentence in State prison. Thereafter, on January 11, 1962, the Court of Appeals affirmed the judgment of this court, made July 5, 1961 ( People v. Gallo, 14 A.D.2d 556), which had affirmed the earlier misdemeanor conviction in the County Court, Kings County ( 10 N.Y.2d 1024). On February 14, 1962, respondent Gallo was returned to the County Court, Kings County, from Attica State Prison pursuant to a writ of habeas corpus issued by a Judge of that court on the application of an Assistant District Attorney of Kings County. Thereupon Gallo was remanded by the County Judge to the New York City penitentiary to resume serving the sentence imposed on the misdemeanor conviction. Application granted; order of the County Court, Kings County, dated February 14, 1962, vacated; and respondents, the City Commissioner of Correction, the Warden of the City penitentiary, the County Judge and the District Attorney of Kings County, are directed to transfer and deliver respondent Gallo promptly to Attica State Prison for the completion of the service of the sentence imposed upon him by the Court of General Sessions of the County of New York. In our opinion respondent Gallo, having voluntarily interrupted his penitentiary sentence by obtaining his release on bail (cf. People ex rel. Rainone v. Murphy, 1 N.Y.2d 367, 373), was properly committed to the State prison following his conviction for felonies committed while free on bail (cf. People ex rel. Bove v. McDonnell, 128 N.Y.S.2d 643, 647-648, appeal dismissed 284 App. Div. 937). The service of that sentence should not have been interrupted thereafter (cf. People ex rel. Rainone v. Murphy, supra). The sentence imposed upon respondent Gallo on his misdemeanor conviction in Kings County, which was affirmed by this court and by the Court of Appeals, and which he will be required to complete following the completion of service of his sentence in State prison, will not be affected by such imprisonment in the State prison (cf. People ex rel. Halle v. Ashworth, 9 Misc.2d 451, affd. 268 App. Div. 765; People ex rel. Welch v. Slattery, 179 Misc. 899, 903). Beldock, P.J., Kleinfeld, Christ, Brennan and Hopkins, JJ., concur.