People ex rel. Moore v. Henderson

57 A.D.2d 726, 395 N.Y.S.2d 559, 1977 N.Y. App. Div. LEXIS 11780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1977
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Relator was sentenced on February 28, 1975 to 15 years to life imprisonment. Asserting that subdivision 1 of section 803 of the Correction Law is unconstitutional insofar as it excludes prisoners whose maximum term is life imprisonment from its provisions authorizing prisoners having indeterminate sentences to time allowance for good behavior, relator instituted this habeas corpus proceeding. He asked to have the petition entertained as a class action on behalf of all prisoners serving terms with a maximum of life imprisonment, and asked the court to declare such provision of the statute unconstitutional. He appeals from the judgment dismissing the writ and petition. It is acknowledged that relator has an appeal pending from his judgment of conviction; that he has not yet served his minimum sentence; and that he is not entitled to his immediate release from prison. For these reasons we do not reach the merits of his contentions, and we affirm the dismissal (see People ex rel. Lane v Vincent, 32 NY2d 940; People ex rel. Malinowski v Casscles, 53 AD2d 954). (Appeal from judgment of Cayuga County Court—habeas corpus.) Present—Marsh, P. J., Cardamone, Dillon, Goldman and Witmer, JJ.