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People ex Rel. Moccio v. Henderson

Appellate Division of the Supreme Court of New York, Fourth Department
Jan 21, 1977
55 A.D.2d 1039 (N.Y. App. Div. 1977)

Opinion

January 21, 1977

Appeal from the Cayuga Supreme Court.

Present — Marsh, P.J., Moule, Cardamone, Simons and Witmer, JJ.


Judgment unanimously modified in accordance with memorandum and, as modified, affirmed. Memorandum: By this habeas corpus proceeding relator challenges a decision of the respondent which determined his release eligibility date to be August 30, 1979. Special Term denied the writ. An article 78 proceeding is the proper means for testing the calculation of relator's period of imprisonment, and we consider this as such a proceeding (see People ex rel. Ward v Smith, 52 A.D.2d 755; People ex rel. Cook v Smith, 52 A.D.2d 1085; Matter of Speed v Regan, 50 A.D.2d 1100). Relator is correct in his contention that the release eligibility date should be determined by measuring his term from the date that he was received at the State institution after sentencing on his 1963 conviction, i.e., August 13, 1963 (Correction Law, § 212-a; and see Matter of Moore v Graves, 52 A.D.2d 1052). Insofar as this decision is in conflict with our decision in Matter of Hodge v Henderson ( 52 A.D.2d 729), that decision is overruled.


Summaries of

People ex Rel. Moccio v. Henderson

Appellate Division of the Supreme Court of New York, Fourth Department
Jan 21, 1977
55 A.D.2d 1039 (N.Y. App. Div. 1977)
Case details for

People ex Rel. Moccio v. Henderson

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK ex rel. CARMINE MOCCIO, Appellant, v…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jan 21, 1977

Citations

55 A.D.2d 1039 (N.Y. App. Div. 1977)