People ex rel. Metz v. Fay

11 A.D.2d 1067, 206 N.Y.S.2d 369, 1960 N.Y. App. Div. LEXIS 7575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1960
• Status: Published

Opinion

Appeal by the relator from an order of the Supreme Court, Dutchess County, entered July 21, 1958, which dismisses, after a hearing, a wnt of habeas corpus and remands him to custody. Order affirmed, without costs. Relator was sentenced to consecutive terms of 6 to 7 years for escape from lawful custody (Penal Law, § 1694), and 10 to 14 years for carrying a weapon and ammunition (Penal Law, § 1897). Both sentences began to run on or about July lj 1960. In this proceeding, relator attacks the legality of his sentence on the weapon charge, claiming that prior to its imposition he was not asked whether he had any legal cause to show why judgment should not be pronounced against him, as required by section 480 of the Code of Criminal Procedure. He does not question the propriety of his sentence on the escape charge. Even if it be assumed that, as respects the sentence on the weapon charge, there was no compliance with said statute — upon which question we express no opinion, the validity of relator’s sentence for escape is unquestioned. Not even its minimum term has expired, and relator does not claim that he is entitled to release if his contention regarding the other sentence be sustained. Accordingly, the application for the writ of habeas corpus was premature and the order dismissing the writ was proper (People ex rel. Dote v. Martin, 294 N. Y. 330, 333; People ex rel. Young v. Fay, 278 App. Div. 774 [2d Dept.], motion for leave to appeal denied 302 N. Y. 951; People ex rel. Stokrocki v. Fay, 8 A D 2d 984 [2d Dept.]). Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.