People ex rel. Moccio v. Henderson

55 A.D.2d 1039, 391 N.Y.S.2d 250, 1977 N.Y. App. Div. LEXIS 10393

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1977
• Status: Published

Opinion

Judgment unanimously modified in accordance with memorandum and, as modified, affirmed. Memorandum: By this habeas corpus proceeding relator challenges a decision of the respondent which determined his release eligibility date to be August 30, 1979. Special Term denied the writ. An article 78 proceeding is the proper means for testing the calculation of relator’s period of imprisonment, and we consider this as such a proceeding (see People ex rel. Ward v Smith, 52 AD2d 755; People ex rel. Cook v Smith, 52 AD2d 1085; Matter of Speed v Regan, 50 AD2d 1100). Relator is correct in his contention that the release eligibility date should- be determined by measuring his term from the date that he was received at the State institution after sentencing on his 1963 conviction, i.e., August 13, 1963 (Correction Law, § 212-a; and see Matter of Moore v Graves, 52 AD2d 1052). Insofar as this decision is in conflict with our decision in Matter of Hodge v Henderson (52 AD2d 729), that decision is overruled. (Appeal from judgment of Cayuga Supreme Court — habeas corpus.) Present — Marsh, P. J., Moule, Cardamone, Simons and Witmer, JJ.