People ex rel. Hunker v. Smith

Appellate Division of the Supreme Court of New York

People ex rel. Hunker v. Smith

47 A.D.2d 582, 363 N.Y.S.2d 170, 1975 N.Y. App. Div. LEXIS 8677

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

DecidedJanuary 16, 1975

StatusPublished

This text of 47 A.D.2d 582 (People ex rel. Hunker v. Smith) 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. Hunker v. Smith, 47 A.D.2d 582, 363 N.Y.S.2d 170, 1975 N.Y. App. Div. LEXIS 8677 (N.Y. Ct. App. 1975).

Pincite

Opinion

Judgment unanimously reversed and writ granted in accordance with the following memorandum: In 1959 relator was sentenced to one day to life for violation of section 483-b of the former Penal Law and in 1971 he was resentenced to the same term. The sentence was affirmed upon appeal {People v. Hunker, 35 N Y 2d 870). Upon his habeas corpus application, the trial court found after a hearing that relator has not received any psychiatric or rehabilitative treatment since 1971 and that he will not receive any treatment at-Attica 'Prison which will eventually permit his return to society as intended by the statute. Such being the case, he may not be held on a one-day to life sentence. Ordinarily we would deny the writ without prejudice to a motion pursuant to CPL article 440 so that he could be sentenced to a definite term as did the trial court. However, we note that relator has already served more than the maximum definite term of imprisonment prescribed for the crimes of which he was convicted. We, therefore, reverse the judgment of the trial court, grant the writ and order relator’s release. (Appeal from judgment of Wyoming County Court dismissing writ of habeas corpus.) Present — Marsh, P. J., Witmer, Simons, Mahoney and Goldman, JJ.

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Judgment unanimously reversed and writ granted in accordance with the following memorandum: In 1959 relator was sentenced to one day to life for violation of section 483-b of the former Penal Law and in 1971 he was resentenced to the same term. The sentence was affirmed upon appeal {People v. Hunker, 35 N Y 2d 870). Upon his habeas corpus application, the trial court found after a hearing that relator has not received any psychiatric or rehabilitative treatment since 1971 and that he will not receive any treatment at-Attica 'Prison which will eventually permit his return to society as intended by the statute. Such being the case, he may not be held on a one-day to life sentence. Ordinarily we would deny the writ without prejudice to a motion pursuant to CPL article 440 so that he could be sentenced to a definite term as did the trial court. However, we note that relator has already served more than the maximum definite term of imprisonment prescribed for the crimes of which he was convicted. We, therefore, reverse the judgment of the trial court, grant the writ and order relator’s release. (Appeal from judgment of Wyoming County Court dismissing writ of habeas corpus.) Present — Marsh, P. J., Witmer, Simons, Mahoney and Goldman, JJ.

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Bluebook (online)

47 A.D.2d 582, 363 N.Y.S.2d 170, 1975 N.Y. App. Div. LEXIS 8677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-hunker-v-smith-nyappdiv-1975.