SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
May 16, 1968
THE PEOPLE OF THE STATE OF NEW YORK EX REL. CHESTER LEE COLBY, RESPONDENT,
J. EDWIN LA VALLEE, AS WARDEN OF AUBURN PRISON, APPELLANT
Appeal from order of Cayuga County Court sustaining a writ of habeas corpus, following a hearing.
Bastow, P. J., Del Vecchio, Marsh, Witmer and Henry, JJ.
Order unanimously reversed and writ dismissed. Memorandum: Relator contends that he was not given good conduct credit while serving a penitentiary sentence in Onondaga County, and, additionally, was illegally confined one day for each $1 unpaid of the $250 fine made a part of his sentence. Said fine is claimed to be illegal because he was without funds with which to pay it (see People v. Saffore, 18 N.Y.2d 101). In accordance with a subsequent felony sentence, expressly made to follow upon his completion of the foregoing sentence, relator is now confined to Auburn Prison. The court below sustained the writ and directed respondent Warden to credit relator's present sentence with 248 days credit for excess time served on his Onondaga County Penitentiary sentence between March 26, 1963 and November 29, 1963. Regardless of the merits of relator's claims for good conduct credit and that he was illegally confined for nonpayment of fine, any such alleged excess time served on that penitentiary sentence may not be credited to his later felony sentence (Penal Law, § 2193; People v. Kowalsky, 2 A.D.2d 938
, affd. 2 N.Y.2d 949).
Order unanimously reversed and writ dismissed.
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