People ex rel. Di Lorenzo v. Fay
| Decision Date | 26 June 1961 |
| Parties | PEOPLE of the State of New York ex rel. Anthony DI LORENZO, Relator-Appellant, v. Edward M. FAY, Warden of Green Haven Prison, Respondent. In the Matter of the Application of Anthony DI LORENZO, Petitioner-Appellant, v. DIVISION OF PAROLE of State of New York, Respondent. (Consolidated appeals.) |
| Court | New York Supreme Court — Appellate Division |
David M. Markowitz, New York City, for appellant.
Louis J. Lefkowitz, Atty. Gen., for respondent. Irving Galt, Philip Weinberg, New York City, of counsel.
Before NOLAN, P. J., and BELDOCK, UGHETTA, KLEINFELD and CHRIST, JJ.
MEMORANDUM BY THE COURT.
Appeal by relator from an order of the Supreme Court, Dutchess County, dated January 19, 1961, dismissing, after a hearing, a writ of habeas corpus and remanding him to the custody of the Warden of Green Haven Prison.
The relator, serving an indeterminate sentence, the maximum term of which was to expire on December 10, 1960, was paroled by the board of parole on March 3, 1959; declared delinquent by the board of parole as of August 20, 1959; and returned to prison as a parole violator on October 21, 1960, at which time he was charged with owing one year, two months and seven days delinquent time.
On December 13, 1960, relator sued out a writ of habeas corpus seeking his release from confinement on the ground that the action of the board of parole in declaring him delinquent and returning him to prison was unlawful. At the hearing held on the return of the writ, the relator's uncontradicted testimony was to the effect that he was not guilty of parole violation on August 20, 1959. The writ was dismissed by the order appealed from.
Order affirmed.
On the record presented the writ was properly dismissed (see People ex rel. Mahon v. Warden of Dept. of Correction of City of N. Y., 1 Misc.2d 267, 275, 144 N.Y.S.2d 837, 845, and cases cited; affirmed 2 A.D.2d 876, 156 N.Y.S.2d 1001).
In a proceeding pursuant to article 78 of the Civil Practice Act, for an order directing the Division of Parole to amend its records so that petitioner's release date shall be stated as December 10, 1960, and directing petitioner's release from custody, the petitioner appeals from so much of an order of the Supreme Court, Dutches County, dated March 11, 1961, as dismissed the petition on the ground that it fails to state facts sufficient to entitle him to the relief sought.
Following the dismissal of the writ of habeas...
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