Opinion
January 16, 1975
Appeal from the Wyoming County Court.
Present — Marsh, P.J., Witmer, Simons, Mahoney and Goldman, JJ.
Judgment unanimously reversed and writ granted in accordance with the following memorandum: In 1959 relator was sentenced to one day to life for violation of section 483-b of the former Penal Law and in 1971 he was resentenced to the same term. The sentence was affirmed upon appeal ( People v. Hunker, 35 N.Y.2d 870). Upon his habeas corpus application, the trial court found after a hearing that relator has not received any psychiatric or rehabilitative treatment since 1971 and that he will not receive any treatment at Attica Prison which will eventually permit his return to society as intended by the statute. Such being the case, he may not be held on a one-day to life sentence. Ordinarily we would deny the writ without prejudice to a motion pursuant to CPL article 440 so that he could be sentenced to a definite term as did the trial court. However, we note that relator has already served more than the maximum definite term of imprisonment prescribed for the crimes of which he was convicted. We, therefore, reverse the judgment of the trial court, grant the writ and order relator's release.