Malenfont v. Hyman

Appeal from an order of the Supreme Court dismissing a writ of habeas corpus. Petitioner was sentenced to a term of 15 years to life as a fourth offender on June 26, 1946. He was credited with approximately five years “good behavior” time under section 230 of the Correction Law. In a coram nobis proceeding the above sentence was set aside because petitioner’s previous convictions could not be considered felonies as a basis for sentencing him as a multiple offender. He was resentenced on January 11, 1957 to a term of 7½ to 15 years. His minimum term of 7½ years expired on November 2, 1953. His maximum term will expire on May 1, 1961. Petitioner contends that the five years’ reduction should be applied against his maximum term and, added to the time he has served, would entitle him to release. The provisions of section 230 of the Correction Law require that such reduction be computed upon the minimum term of a prisoner sentenced to an indeterminate sentence. The only effect of such reduction of time is to accelerate the time when a prisoner becomes eligible for parole. In the discretion of the Parole Board he may be held until the expiration of the maximum term. (People ex rel. von Moser v. New York State Parole Board, 179 Misc. 397, affd. 266 923 App. Div. 896; Matter of Pizza v. Lyons, 278 App. Div. 65, affd. 303 N. Y. 736, motion to amend remittitur granted 303 N. Y. 900, appeal dismissed 343 U. S. 961; People ex rel. Trinker v. Denno, 156 N. Y. S. 2d 235.) Order affirmed. Foster, P. J., Bergan, Coon and Gibson, JJ., concur.