Opinion
October 4, 1971
Judgment, Supreme Court, Bronx County, rendered on June 12, 1970, resentencing defendant, and order of said court, entered on November 23, 1970, denying, without a hearing, appellant's petition for a writ of error coram nobis, unanimously modified, on the law and the facts, and in the interest of justice, to reduce the sentence of a term of not less than 25 nor more than 30 years, nunc pro tunc, as of September 25, 1956, to a term of not less than 22 nor more than 30 years, nunc pro tunc, as of September 25, 1956, and otherwise affirmed. The original appeals were held in abeyance pending a hearing. As a result of the hearing, it is apparent that defendant served excess time on his predicate conviction. People ex rel. Johnson v. Martin ( 307 N.Y. 713) held that all persons delivered to a Reception Center pursuant to article 3A of the Correction Law since July 1, 1945 should be deemed to be serving a term not to exceed 5 years. This defendant served 7 years, 9 months and 8 days. We compute the excessive time so served to be 2 years, 9 months and 8 days, and defendant is accordingly entitled to the relief indicated. The imposition of sentence is governed by section 1941 of the former Penal Law; see section 5.05 Penal of the Penal Law, limiting Penal Law effective September 1, 1967 to offenses committed thereafter.
Concur — Capozzoli, J P., Markewich, Nunez, McNally and Tilzer, JJ.