New York Supreme Court, 1934

In re O'Keefe

New York Supreme Court · Decided July 20, 1934 · Rogers

154 Misc. 340; 277 N.Y.S. 101; 1934 N.Y. Misc. LEXIS 1935

Counsel

A. Stanley Copeland, for the petitioner., John J. Bennett, Jr., Attorney-General [L. M. Layden and William G. Healy, Assistant Attorneys-General, of counsel], for the relator.

Opinion of the Court

Rogers, J.

When a prisoner is ordered resentenced he is not “ discharged from prison by pardon or otherwise, nor is he released therefrom on parole.” But if the resentence does not provide for his incarceration in a State prison, then he is discharged from prison, and thereupon becomes entitled to the twenty dollars, as provided for in section 125 of the Correction Law.

*341The record shows that the County Court of Rockland county, May 7, 1934, in resentencing the prisoner imposed an indeterminate sentence and suspended the execution thereof. This amounted to a discharge from State prison. The peremptory mandamus order should be allowed.

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