
    In the Matter of Augustine Perillo, Appellant, against New York State Board of Parole, Respondent.
    Argued May 2, 1958;
    decided June 25, 1958.
    
      
      Harris B. Steinberg, Harold B. Soden and Leo H. Hirsch, Jr., for appellant.
    
      Louis J. Leflcowits, Attorney-General (Raymond B. Madden, Paxton Blair and Paul C. Reuss of counsel), for respondent.
   Per Curiam.

Even had the Federal crime of which petitioner

was convicted while on parole been a misdemeanor under New York law — a matter we do not pass upon since it was raised for the first time in this court — the petitioner would not be entitled to credit on his State sentence for the time served in the Federal penitentiary. The present case differs materially from People ex rel. Rainone v. Murphy (1 N Y 2d 367).

The order appealed from should be affirmed.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Frqessel, Van Vookhis and Burke concur.

Order affirmed.  