Opinion
January 13, 1944
Louis Halle, relator in person.
Frank S. Hogan, District Attorney ( Stanley H. Fuld and Alan J. Elliot of counsel), for respondent.
This writ of habeas corpus tests whether a parolee, in this case under a life sentence, may be sentenced to an indeterminate term upon conviction of a misdemeanor (Correction Law, §§ 203, 204). It appears that, upon separate misdemeanor convictions, two consecutive indeterminate sentences may not simultaneously be imposed ( People ex rel. Gordon v. Ashworth, 290 N.Y. 285), and in consequence it has been held that a parolee under an indeterminate term may not be sentenced, upon another misdemeanor conviction, to another indeterminate term until the expiration of the first such term ( People ex rel. Bernard v. Ashworth, 43 N.Y.S.2d 366).
In my opinion, however, it is clear that a parolee under a fixed term may, in such case, be sentenced to an indeterminate term as a matter of law ( People ex rel. Pellicano v. Ashworth, 265 App. Div. 853). Loss of civil rights (Penal Law, § 510) or civil death (Penal Law, § 511) cannot reasonably be said to preclude such sentence (cf. Matter of Lindewall, 287 N.Y. 347; Avery v. Everett, 110 N.Y. 317; People v. Feolo, 284 N.Y. 381) and, under the authorities, the possibility of benefit by such sentence is to be conclusively presumed from the very sentence, however incongruous ( People v. Thompson, 251 N.Y. 428; People ex rel. Standik v. Ashworth, 9 Misc.2d 444, affd. 266 App. Div. 775; People ex rel. Pastore v. Ashworth, 9 Misc.2d 445).
Accordingly, the writ is dismissed.