Opinion
July 7, 1955.
Appeal from County Court in Clinton County.
The relator, Alvin Ward, pleaded guilty to attempted grand larceny, second degree, on July 9, 1952, in the Court of General Sessions, New York County. Being twenty-three years of age and having never before been convicted of a felony, he was sentenced to imprisonment in Elmira Reformatory. About three months after he was received at Elmira Reformatory, he was transferred to Clinton Prison at Dannemora by the Commissioner of Correction who has been invested with "power to transfer inmates from one state correctional institution to another". (Correction Law, § 6-a.) The punishment provided by section 1297 of the Penal Law for grand larceny, second degree, is five years. Section 261 of the Penal Law provides that a person who unsuccessfully attempts to commit a crime is punishable (with exceptions not here pertinent) by imprisonment for not more than half the longest term prescribed upon a conviction for the commission of the crime attempted. After being confined for two and one-half years, the relator, claiming that he had served in a State prison the maximum prison term for the crime of which he was convicted, presented a petition for a writ of habeas corpus. The writ was sustained and an order entered discharging the relator from custody. The State contends that since relator's sentence was a reformatory sentence, the maximum term of imprisonment was five years and that the relator should not have been discharged. Relator was not sentenced pursuant to sections 261 and 1297 of the Penal Law. He was sentenced pursuant to sections 2185 and 2195 of the Penal Law and section 288 Correct. of the Correction Law. Section 2185 provides that a male between the ages of twenty-one and thirty convicted of a felony may be sentenced to Elmira Reformatory, "to be there confined under the provisions of law relating to reformatories". Section 2195 prohibits the court passing sentence from fixing the duration of the imprisonment of a person sent to the reformatory. Section 288 Correct. of the Correction Law reads as follows: "Any person who shall be convicted of an offense punishable by imprisonment in Elmira Reformatory, and who, upon such conviction, shall be sentenced to imprisonment therein, shall be imprisoned according to this article, and not otherwise. The term of such imprisonment of any person so convicted and sentenced shall be terminated by the board of parole in the executive department, but such imprisonment shall be for a period not to exceed five years". The language is clear and unambiguous and provides that in every case upon sentence to Elmira Reformatory after a conviction of a felony, the maximum of said sentence shall be five years. The fact that the relator was transferred to a prison is immaterial. The nature of his sentence is not controlled by the place of confinement. ( People ex rel. Johnson v. Martin, 283 App. Div. 478, affd. 307 N.Y. 713.) He received a "reformatory sentence" and his transfer to a prison did not change its character. In our view, the relator is not entitled to a discharge from prison until his sentence is terminated by the Board of Parole or until he has served five years, whichever the sooner occurs. We assume that in reviewing the relator's case the Board of Parole will consider that had he been directly sentenced to a prison, a sentence of two and one-half years is the maximum which could have been imposed. Order reversed, without costs, and the relator remanded to the custody of the warden. Foster, P.J., Bergan, Halpern, Imrie and Zeller, JJ., concur.