Opinion
Argued April 20, 1971
Decided May 12, 1971
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH F. HAWKINS, J.
Alfred L. Jacobsen, III for appellant.
Louis J. Lefkowitz, Attorney-General ( Hillel Hoffman and Samuel A. Hirshowitz of counsel), for respondent.
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.
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.