People ex rel. Walker v. McMann , 33 A.D.2d 639 ( 1969 )

Judgment, unanimously affirmed. Memorandum: The relator contends, that his sentence was defective in that it did not name the institution in which the sentence was to be served as required by section 2180 of the Penal Law as it existed when relator was sentenced June 8,. 1966. Such a defect is technical and not one of substance and would only entitle relator to a resentencing, not release from imprisonment. However, relator waived his right' to resentencing at the time of the hearing on his petition. The court below in substance informed the relator that the effect of sustaining his contention would be his return to New York County for that purpose. Both the relator and his counsel indicated that they were only interested in his release and not resentence, (Appeal from judgment of Cayuga County Court dismissing writ of habeas corpus.) Present — Goldman, P'. J., Witmer, Gabrielli, Moule and Henry, JJ.