People ex rel. De Flumer v. Vincent 43 A.D.2d 948

In this habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, dated January 15,1974, which dismissed the writ. The notice of appeal is hereby amended to show that the correct date of the judgment is January 15, 1974 and not June 20, 1973, which is the date of the decision upon which the judgment was entered. Judgment affirmed, without costs. On June 30, 1947, relator pleaded guilty to murder in the second degree and on July 7, 1947 was sentenced to a prison term of 20 years to life. He was 15 years of age at the time. Approximately eight months after he was sentenced, the Legislature amended subdivision 3 of section 486 of the then extant Penal Law (L. 1948, ch. 554, § 1). Under the amended statute, relator would have been treated as a juvenile delinquent and would not have received such a severe sentence. Relator contends that the statute, as amended, should be applied retroactively. He argues that he is now the only person still incarcerated pursuant to the provisions of the former Penal Law prior to the above-mentioned 1948 amendment and that holding the statute retroactive would affect only him. In People v. Oliver (1 N Y 2d 152), the Court of Appeals gave limited retroactive effect to the 1948 amendment in question, by declaring that it was to apply to all cases tried after its enactment, even for offenses committed prior thereto. The court specifically stated (p. 163): “It may be well to note that the construction that we are here according to the amendment cannot be applied in favor of an offender tried and sentenced to imprisonment before its enactment.” (See, also, People v. Codarre, 10 N Y 2d 361, 365, 367.) On the basis of the foregoing decisions of the Court of Appeals, we are constrained to affirm the dismissal of the instant writ. In our opinion, relator’s remedy is either to apply to the Parole Board or to seek a commutation of sentence from the Governor. Hopkins, Acting P. J., Shapiro, Brennan and Munder, JJ., concur.