Opinion
October 26, 1971
In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, entered May 15, 1969, which dismissed the writ. Appeal dismissed, as moot, without costs. After the entry of the judgment relator was discharged from the custody in which he had been held on and prior to said entry date and he concedes that he is presently confined to Comstock Prison serving a seven-year sentence after a jury trial on unrelated matters. Therefore, his liberty is not restrained under the 1968 sentence here attacked and accordingly he is not entitled to the extraordinary writ of habeas corpus ( People ex rel. Wilder v. Markley, 26 N.Y.2d 648; People ex rel. Hampton v. Schrader, 34 A.D.2d 1000). Shapiro, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.