People ex rel. Walker v. People

3 A.D.2d 623, 157 N.Y.S.2d 993, 1956 N.Y. App. Div. LEXIS 3441

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1956
• Status: Published

Opinion

Appeal from an order of the County Court of St. Lawrence County, which dismissed a petition which petitioner labels as an application for a writ in the nature of coram nobis. Petitioner was convicted of burglary in the third degree and petit larceny on April 30, 1951, in the County Court of St. Lawrence County. He does not attack his conviction but urges that an improper sentence or no sentence was imposed because the court directed that he “Be committed to the Reception Center of the Department of Correction at Elmira, New York, for classification and confinement pursuant to Article 3-A of the Correction Law ”. Appellant’s contention apparently is that because the sentence did not also contain the language “ sentenced to imprisonment in an institution under the jurisdiction of the department of correction without designating the name of such institution ”, which was language used in section 61 of the Correction Law prior to 1954 (L. 1947, ch. 198), the commitment to the Reception Center did not constitute a valid sentence. He apparently relies upon dictum in People ex rel. Johnson v. Martin (283 App. Div. 478). However, appellant does not question the conviction and raises no question o£ fact whatever. Gormn nobis is unavailable to correct an error of law, even if there be such an error. (People v. Sidoti, 1 A D 2d 232; People v. Eastman, 306 N. Y. 658.) Moreover, if we are to treat the application as a motion for resentence, it appears from the petition that the sentence under attack has been fully served and the question is academic. (People v. Gifford, 2 A D 2d 642.) Order affirmed. Foster, P. J., Bergan, Coon and Gibson, JJ., concur.