People Ex Rel. Fitzgerald v. Casscles

28 N.Y.2d 866 (1971)

The People of the State of New York ex rel. Eugene Fitzgerald, Appellant, v. John L. Casscles, as Warden of Sing Sing Prison, Respondent.

Court of Appeals of the State of New York.

Argued April 20, 1971.

Decided May 12, 1971.

Alfred L. Jacobsen, III for appellant.

Louis J. Lefkowitz, Attorney-General (Hillel Hoffman and Samuel A. Hirshowitz of counsel), for respondent.

Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.

Order affirmed, without costs, in the following memorandum: The order appealed from should be affirmed on the sole ground that the relator is not entitled to a writ of habeas corpus since the relief requested would not result in his discharge from prison. (See, e.g., People ex rel. Dellavalle v. McGinnis, 21 N Y 2d 795; People ex rel. Reynolds v. Martin, 3 N Y 2d 217, 223.) The affirmance is, however, without prejudice to the relator's institution of an appropriate proceeding to have the court ascertain the time he spent in "custody" at Kings Park Hospital and have it credit such time toward his sentence.