People ex rel. Smith v. McMann

29 A.D.2d 594, 285 N.Y.S.2d 669, 1967 N.Y. App. Div. LEXIS 2728

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1967
• Status: Published

Opinion

Aulisi, J.

Appeal by relator from a judgment of the Supreme Court, Clinton County, which dismissed, after a hearing, a writ of habeas corpus and remanded him to custody. Relator was sentenced to 20 years to life for murder in the second degree, and one day to life for sodomy first degree. He challenges the latter sentence for failure to comply with section 2189-a of the Penal Law. The minimum sentence imposed upon the conviction for murder has not yet expired. Accordingly, the application was properly dismissed as premature (OPLR 7002, subd. [a]; MoNaTly v. Hill, 293 U. S. 131; People ex rel. Metz v. Fay, 11 A D 2d 1067; People ex rel. Young v. Fay, 278 App. Div. 774, mot. for iv. to opp. den. 302 N. Y. 951; People ex rel. Young v. Martin, 270 App. Div. 1069, affd. 297 N. Y. 892; People ex rel. Smith v. Martin, 264 App. Div. 976; People ex rel. Dote v. Martin, 294 N. Y. 330). We do not pass on any other question. Judgment affirmed, without costs. Herlihy, J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.