People ex rel. Cavalluzzo v. Warden, New York City Correctional Institution for Men

39 A.D.2d 897, 334 N.Y.S.2d 813, 1972 N.Y. App. Div. LEXIS 4132

Opinion

Judgment, Supreme Court, Bronx County, rendered May 1, 1972, unanimously reversed, on the law, and the matter remanded to Special Term, Bronx County, for a hearing on the writ of habeas corpus. Special Term dismissed the writ without passing on the merits, holding simply that “the proper remedy is by motion,” the reference being to article 440 of the Criminal Procedure Law. It is not necessary to decide here whether relator-appellant should have proceeded under that article. On what is before us, we hold that the writ and its supporting papers, taken together with the oral amendment found in the record, sufficiently defined the issue before the court so as to require a hearing on the merits. Concur — Markewieh, J. P., Kupferman, Murphy, Tilzer and Capozzoli, JJ.