Opinion
January 21, 1977
Appeal from the Cayuga Supreme Court.
Present — Marsh, P.J., Moule, Cardamone, Simons and Witmer, JJ.
Judgment unanimously modified in accordance with memorandum and, as modified, affirmed. Memorandum: By this habeas corpus proceeding relator challenges a decision of the respondent which determined his release eligibility date to be August 30, 1979. Special Term denied the writ. An article 78 proceeding is the proper means for testing the calculation of relator's period of imprisonment, and we consider this as such a proceeding (see People ex rel. Ward v Smith, 52 A.D.2d 755; People ex rel. Cook v Smith, 52 A.D.2d 1085; Matter of Speed v Regan, 50 A.D.2d 1100). Relator is correct in his contention that the release eligibility date should be determined by measuring his term from the date that he was received at the State institution after sentencing on his 1963 conviction, i.e., August 13, 1963 (Correction Law, § 212-a; and see Matter of Moore v Graves, 52 A.D.2d 1052). Insofar as this decision is in conflict with our decision in Matter of Hodge v Henderson ( 52 A.D.2d 729), that decision is overruled.