
    The People of the State of New York ex rel. Richard Barone, Relator, v. Russell Oswald, as Commissioner of the New York State Division of Parole, et al., Respondents.
    Supreme Court, Special Term, New York County,
    October 5, 1962.
    
      Richard Barone, relator in person. Louis J. Lefkowitz, Attorney-General (Ronald J. Offenkrantz of counsel), for respondents.
   Morris E. Spector, J.

Writ is dismissed.

Relator was sentenced to a term of two and one-half to three and one-half years which he commenced serving on March 1, 1959. The Department of Correction of the State of New York fixed the relator’s maximum expiration date at June 11, 1962. Relator was paroled on September 25, 1961 to answer a warrant issued by the State of Massachusetts where he received a suspended sentence. While on parole, the relator absconded on October 27,1961 and was declared delinquent.

On January 6, 1962 relator was arrested and charged with burglary and possession of burglars’ tools. The parole authorities thereafter on or about January 9, 1962 issued and filed a warrant against relator in Tombs Prison. On September 6,1962 relator was convicted of unlawful entry and petit larceny and sentencing was set for October 28,1962.

Relator contends that he should be admitted to bail pending sentence as the maximum expiration date of his two-and-one-half-to-three-and-one-half-years sentence has expired and he cannot now be held in custody as a parole violator.

The relator is in error. The time he has been held since last arrested on January 6,1962 may be credited to his sentence for his conviction of September 6,1962 but cannot be credited against his maximum expiration date for the sentence he began serving on March 1, 1959. £ £ When a parolee is arrested on a charge that he committed another crime, the Board of Parole has no control over him until the disposition of the charge and his return to prison * * * It follows that the Board of Parole could not cause the original sentence to run again until his return to State prison.” (People ex rel. Paqua v. Fay, 8 A D 2d 856, affd. 8 N Y 2d 897.)

Relator would receive credit on the original sentence for the time held only if the new charge were dismissed or if he were acquitted. Since he was convicted he cannot receive credit (Penal Law, § 2193, subd. 3; People ex rel. Valentino v. Conboy, 12 A D 2d 706, 707; see, also, People ex rel. Miles v. La Vallee, 16 AD 2d 710, 711).  