Layne v. New York State Board of Parole , 75 Misc. 2d 658 ( 1973 )

John L. Larkin, J.

The petitioner, appearing pro se, seeks by article 78 a writ of mandamus requiring the respondents to give him credit for time spent in jail before sentencing, such credit to be extended against his minimum period of imprisonment.

The petitioner prisoner was sentenced for the crime of manslaughter in the first degree to an indeterminate sentence of imprisonment which shall have a maximum term of 10 years. Pursuant to the Correction Law (§ 212, subd. 2), the petitioner met with the October, 1972 Parole Board, which determined his minimum term of imprisonment to be four years. The petitioner is not entitled to jail time credit against his minimum sentence when that sentence is set by the Parole Board (Penal Law, § 70.30, subd. 3). The petitioner relies on the language of subdivision 2 of section 212 of the Correction Law, which provides that the: “ determination [of the Parole Board, of the minimum sentence] shall have the same force and effect as a minimum period fixed by a court ”.

There are, of course, significant differences between minimum sentencing by a court and that by a board, the most significant being that the board may, from time to time, reduce such minimum period (Correction Law, § 212, subd. 2) while the court cannot (Walker v. Oswald, 449 F. 2d 481). Jail time is credited when the minimum is fixed by the court, but is not credited when the minimum is fixed by the Parole Board.

The petition is, in all respects, dismissed.