People ex rel. Davis v. Arnette
| Decision Date | 07 April 1977 |
| Parties | The PEOPLE, etc., ex rel. Karl DAVIS, a/k/a Alan Pickering, Appellant, v. Jesse ARNETTE, Superintendent, Queensboro Correctional Facility, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Kenneth E. Demario and Pierce Gerety, New York City, for appellant.
W. Bernard Richland, Corp. Counsel, New York City (Laurence B. Jones and L. Kevin Sheridan, New York City, of counsel), for respondent Malcolm.
Louis J. Lefkowitz, Atty. Gen., New York City, for respondent Arnette (no brief filed).
Before COHALAN, Acting P.J., and HAWKINS, MOLLEN and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
In a habeas corpus proceeding, which this court deems to be a proceeding pursuant to CPLR article 78 to compel respondents to credit petitioner with certain jail time, petitioner appeals (1) from a judgment of the Supreme Court, Queens County, dated February 11, 1977, which dismissed the proceeding and (2), as limited by his brief, from so much of an order of the same court, dated March 21, 1977, as, upon reargument, adhered to the original determination.
Appeal from the judgment dismissed as academic, without costs or disbursements. The judgment was superseded by the order made upon reargument.
Order reversed insofar as appealed from, on the law, without costs or disbursements, and respondent Malcolm is directed to recompute the jail time credit due to petitioner in accordance herewith.
Petitioner commenced this habeas corpus proceeding, seeking certain jail time credit, against the respondent Jesse Arnette, the State official charged with the custody of his person, and Benjamin Malcolm, the Commissioner of the New York City Department of Corrections, who is charged with the responsibility of computing and certifying the jail time credit to which petitioner is entitled. Petitioner contends that his jail time credit was improperly computed by respondent Malcolm and that he is therefore entitled to be released by respondent Arnette.
The writ of habeas corpus is an alternative remedy and may be refused in the exercise of discretion where full relief may be obtained in other more appropriate proceedings (see People ex rel. Brinkman v. Barr, 248 N.Y. 126, 161 N.E. 444; People ex rel. Anderson v. Warden, N.Y. City Correctional Inst. for Men, 68 Misc.2d 463, 465, 325 N.Y.S.2d 829, 832; 25 N.Y.Jur., Habeas Corpus, § 6, p. 506). Under the circumstances of this case Criminal Term, which heard the petition, should have deemed the proceeding to be one pursuant to CPLR article 78 to compel the respondent Malcolm...
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