People ex rel. Meadows v. La Vallee

Application, pursuant to CPLR 7002 (subd. [b], par. 2) for writ of habeas corpus, denied as legally insufficient. The sentence,, imposed upon petitioner’s 1958 conviction was interrupted by the declaration of parole delinquency in 1966 and such interruption continued until his return to an institution under the jurisdiction of the 'State Department of Correction (Penal Law, § 70.40, subd. 3, par. [a]). The time spent in custody upon the conviction in Federal court was not due to an arrest or surrender based upon the delinquency and therefore could not be credited against the original sentence (Penal Law, § 70.40, subd. 3, par. [c], cl. [i]; People ex rel. Petite v. Follette, 24 N Y 2d 60 ; see, also, Zerbst v. Kid/mell, 304 U. ;S. 359). Herlihy, P. J., Staley, Jr., Sweeney, Kane, and Main, JJ., concur.