People v. Wetmore

Appellate Division of the Supreme Court of New York

People v. Wetmore

51 A.D.2d 591, 379 N.Y.S.2d 114, 1976 N.Y. App. Div. LEXIS 10890

Appellate Division of the Supreme Court of the State of New York·Decided January 26, 1976·Published·Cited by 4 cases

Opinion

Appeal by defendant, as limited by his brief, from a sentence of the County Court, Westchester County, imposed December 30, 1974. Sentence affirmed. The sentence imposed by the County Court was neither unlawful nor excessive. We note, however, that we have not considered defendant’s other arguments. Where a defendant alleges an off-the-record sentence promise, or a misunderstanding on his part at the time of sentencing as to the date of his release (see People v Simmons, 40 AD2d 563), the proper vehicle for relief is a motion to vacate the judgment pursuant to CPL 440.10 and 440.30 and not an appeal from the underlying judgment or sentence. Furthermore, we may not now review defendant’s claims that the Department of Correctional Services has improperly computed the date of his ultimate release. If defendant is aggrieved by its actions, his remedy is an article 78 or habeas corpus proceeding. Rabin, Acting P. J., Martuscello, Cohalan, Christ and Shapiro, JJ., concur.

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Appeal by defendant, as limited by his brief, from a sentence of the County Court, Westchester County, imposed December 30, 1974. Sentence affirmed. The sentence imposed by the County Court was neither unlawful nor excessive. We note, however, that we have not considered defendant’s other arguments. Where a defendant alleges an off-the-record sentence promise, or a misunderstanding on his part at the time of sentencing as to the date of his release (see People v Simmons, 40 AD2d 563), the proper vehicle for relief is a motion to vacate the judgment pursuant to CPL 440.10 and 440.30 and not an appeal from the underlying judgment or sentence. Furthermore, we may not now review defendant’s claims that the Department of Correctional Services has improperly computed the date of his ultimate release. If defendant is aggrieved by its actions, his remedy is an article 78 or habeas corpus proceeding. Rabin, Acting P. J., Martuscello, Cohalan, Christ and Shapiro, JJ., concur.

People v. Wetmore, 51 A.D.2d 591, 379 N.Y.S.2d 114, 1976 N.Y. App. Div. LEXIS 10890 (N.Y. Ct. App. 1976).

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Opinion

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