People ex rel. Butts v. Casscles

Appellate Division of the Supreme Court of New York

People ex rel. Butts v. Casscles

38 A.D.2d 579, 328 N.Y.S.2d 619, 1971 N.Y. App. Div. LEXIS 2731

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 13, 1971

StatusPublished

This text of 38 A.D.2d 579 (People ex rel. Butts v. Casscles) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Butts v. Casscles, 38 A.D.2d 579, 328 N.Y.S.2d 619, 1971 N.Y. App. Div. LEXIS 2731 (N.Y. Ct. App. 1971).

Pincite

Opinion

In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Westchester County, entered May 11, 1971, which dismissed the writ. Judgment affirmed, without costs. No opinion. Relator’s notice of appeal is hereby amended to show the correct date of entry of judgment as May 11, 1971 instead of April 22, 1971. Munder, Acting P. J., Latham, Gulotta and Christ, JJ., concur; Shapiro, J., dissents and votes to modify the judgment so as to add a provision thereto that the dismissal of the writ is without prejudice to the institution of an appropriate different proceeding, with the following memorandum: Relator seeks to obtain credit for jail time during his incarceration on another charge while theoretically free on bail on the charge here in question. Since he admits he is not entitled to an immediate release, habeas corpus is not the proper remedy (see, e.g., People ex rel. Fitzgerald v. Casscles, 28 N Y 2d 866; People ex rel. Dellavalle v. McGinnis, 21 N Y 2d 795). Hence, we should not decide the merits of his application. I would modify so as to provide that the dismissal is without [580]*580prejudice to the institution by relator of an appropriate proceeding to determine the question of his right to be credited with jail time for the period in question.

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In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Westchester County, entered May 11, 1971, which dismissed the writ. Judgment affirmed, without costs. No opinion. Relator’s notice of appeal is hereby amended to show the correct date of entry of judgment as May 11, 1971 instead of April 22, 1971. Munder, Acting P. J., Latham, Gulotta and Christ, JJ., concur; Shapiro, J., dissents and votes to modify the judgment so as to add a provision thereto that the dismissal of the writ is without prejudice to the institution of an appropriate different proceeding, with the following memorandum: Relator seeks to obtain credit for jail time during his incarceration on another charge while theoretically free on bail on the charge here in question. Since he admits he is not entitled to an immediate release, habeas corpus is not the proper remedy (see, e.g., People ex rel. Fitzgerald v. Casscles, 28 N Y 2d 866; People ex rel. Dellavalle v. McGinnis, 21 N Y 2d 795). Hence, we should not decide the merits of his application. I would modify so as to provide that the dismissal is without [580]*580prejudice to the institution by relator of an appropriate proceeding to determine the question of his right to be credited with jail time for the period in question.

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Bluebook (online)

38 A.D.2d 579, 328 N.Y.S.2d 619, 1971 N.Y. App. Div. LEXIS 2731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-butts-v-casscles-nyappdiv-1971.