People ex rel. Hardin v. Jackson

1 A.D.2d 749, 147 N.Y.S.2d 48, 1955 N.Y. App. Div. LEXIS 3784

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1955
• Status: Published

Opinion

Appeal from an order of a Special Term, County Court, Clinton County, dismissing a writ of habeas corpus. Upon conviction for robbery, first degree, relator was sentenced on December 1, 1948, in the County Court of Nassau County to a term of from fifteen to thirty years. No jurisdiction or other invalidity of such judgment is demonstrated in support of the writ of habeas corpus; and the appeal taken by relator to the Appellate Division, Second Department, was dismissed for lack of prosecution. The sentence not having expired the writ of habeas corpus was properly quashed. Relator complains that a conviction for burglary, first degree, entered at the same time, and a sentence of seven and one-half years to fifteen years imposed therefor, to begin at the expiration of the sentence for robbery, is invalid because the offenses are merged under the statute. We are not required to pass on that question because the sentence under which relator is presently detained is valid. The validity of the sentence not yet commenced may be tested presently by a writ of cor am, nobis or other appropriate application addressed to the court in which the judgment was entered or by habeas corpus when relator is detained by virtue of such sentence. (People ex rel. Thornwell v. Heacox, 231 App. Div. 617.) Our duty is to inquire into the validity of the sentence under which relator is imprisoned and its invalidity has not been demonstrated. Order unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ.