Opinion
June 28, 1940.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and McCurn, JJ.
Order affirmed, without costs of this appeal to either party. Memorandum: On March 18, 1931, petitioner was sentenced to be imprisoned for not less than fifteen nor more than twenty years for the crime of robbery, first degree. An allowance of seventy-eight days' jail time was endorsed upon the commitment. On November 17, 1932, he was returned from prison, arraigned upon an information charging him with a previous felony conviction and, upon his admitting the charges, the court vacated his indeterminate sentence and imposed sentence as follows: "* * * the said defendant is sentenced to State Prison for the term of thirteen years and four months, the court in imposing this sentence, having deducted one year, eight months, the time served by defendant, under sentence imposed on March 18, 1931, as provided by section 1943 of the Penal Law." We are of the opinion that the petitioner's claim, that this sentence was illegal and void, is without merit. The petitioner further claims that the imposed term has been reduced by commutation and earned compensation, thereby entitling him to be released from custody. His remedy, if any, is by a proceeding pursuant to article 78 of the Civil Practice Act rather than by habeas corpus. All concur. (The order dismisses a writ of habeas corpus and remands relator into custody.)