People ex rel. Ganci v. Henderson

51 A.D.2d 888, 380 N.Y.S.2d 191, 1976 N.Y. App. Div. LEXIS 11515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1976
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: In 1967, following his plea of guilty to attempted grand larceny, second degree, relator was sentenced to the Elmira Reformatory for a term not to exceed five years. In 1970 relator was granted parole to commence serving a subsequent unrelated 10-to-30-year sentence imposed in 1968, for which he is now confined. Realtor contends that his initial sentence was illegal and must now be set aside, since the adult maximum term of imprisonment for attempted grand larceny, second degree, was two and one-half years and he had not been informed that a reformatory sentence might be imposed pursuant to section 2185 of the former Penal Law. Habeas corpus, however, is not available to review a sentence which has expired and relator raises no question regarding the second sentence (People ex rel. Rose v Follette, 37 AD2d 864; People ex rel. Stokrocki v Fay, 14 AD2d 807). Relator was transferred to an adult facility two months after his arrival at the Elmira Reformatory. He contends that the failure to credit him with good time on that sentence delayed the start of his second sentence by 16 months. While relator’s claims may be entertained in an appropriate proceeding, a writ of habeas corpus is not available, since the relief sought would not result in his immediate discharge (People ex rel. Lane v Vincent, 32 NY2d 940; People ex rel. Radunovich v Mancusi, 42 AD2d 919). (Appeal from judgment of Cayuga County Court dismissing writ of habeas corpus.) Present—Marsh, P. J., Simons, Dillon, Goldman and Witmer, JJ.