People v. Keever , 37 A.D.2d 807 ( 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 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.