People ex rel. Butts v. Casscles , 38 A.D.2d 579 ( 1971 )

In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Westchester County, entered May 11, 1971, which dismissed the writ. Judgment affirmed, without costs. No opinion. Relator’s notice of appeal is hereby amended to show the correct date of entry of judgment as May 11, 1971 instead of April 22, 1971. Munder, Acting P. J., Latham, Gulotta and Christ, JJ., concur; Shapiro, J., dissents and votes to modify the judgment so as to add a provision thereto that the dismissal of the writ is without prejudice to the institution of an appropriate different proceeding, with the following memorandum: Relator seeks to obtain credit for jail time during his incarceration on another charge while theoretically free on bail on the charge here in question. Since he admits he is not entitled to an immediate release, habeas corpus is not the proper remedy (see, e.g., People ex rel. Fitzgerald v. Casscles, 28 N Y 2d 866; People ex rel. Dellavalle v. McGinnis, 21 N Y 2d 795). Hence, we should not decide the merits of his application. I would modify so as to provide that the dismissal is without prejudice to the institution by relator of an appropriate proceeding to determine the question of his right to be credited with jail time for the period in question.