People Ex Rel. Fitzgerald v. Casscles

271 N.E.2d 233, 28 N.Y.2d 866, 322 N.Y.S.2d 256, 1971 N.Y. LEXIS 1326

Opinion

Order affirmed, without costs, in the following memorandum: The order appealed from should be affirmed on the sole ground that the relator is not entitled to a writ of habeas corpus since the relief requested would not result in his discharge from prison. (See, e.g., People ex rel. Dellavalle v. McGinnis, 21 N Y 2d 795; People ex rel. Reynolds v. Martin, 3 N Y 2d 217, 223.) The affirmance is, however, without prejudice to the relator’s institution of an appropriate proceeding to have the court ascertain the time he spent in “ custody ” at Kings Park Hospital and have it credit such time toward his sentence.

Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Hibson.