Opinion
October 21, 1963
In a proceeding in the nature of mandamus, under article 78 of the Civil Practice Act (see CPLR, § 7801 et seq.), for an order directing that petitioner be given credit on his felony prison sentences for the time that he was incarcerated in New York City prisons pursuant to a charge to which he had pleaded guilty as a misdemeanor and for which he was sentenced to a term of six months, petitioner appeals from an order of the Supreme Court, Dutchess County, entered May 7, 1963, which dismissed the petition. Order affirmed, without costs. While petitioner was on parole, he was arrested in New York City. The Board of Parole filed a warrant against petitioner who was subsequently convicted of a misdemeanor and sentenced to a term of six months which he served in the city prisons. The sentence for the misdemeanor did not expressly state whether it was to be served concurrently or consecutively with the sentences previously imposed for felonies. After petitioner served his sentence for the misdemeanor he was returned to a State prison as a parole violator. Petitioner was not entitled to credit against the felony sentences for the time served pursuant to the subsequent arrest and conviction for a misdemeanor ( Matter of Browne v. Board of Parole, 10 N.Y.2d 116; People ex rel. Rodriguz v. Donovan, 12 A.D.2d 964; Matter of Perillo v. New York State Bd. of Parole, 4 A.D.2d 355, affd. 4 N.Y.2d 1013). Ughetta, Acting P.J., Christ, Brennan, Hill and Rabin, JJ., concur.