People ex rel. Steinberg v. Superintendent of the Green Haven Correctional Facility

In a habeas corpus proceeding, the appeal is from a judgment of the Supreme Court, Dutchess County, dated January 12, 1977 and amended February 7, 1977, which dismissed the proceeding. Judgment reversed, on the law, without costs and disbursements, and respondents are directed to discharge petitioner from custody forthwith, in accordance with the provisions of section 70.40 of the Penal Law. Petitioner commenced a CPLR article 78 proceeding to compel the respondent superintendent to credit him with 257 days of jail time, to correct the computation of his sentence and to adjust his conditional release date. That petition was granted and, pursuant to the judgment, his conditional release date was advanced from June 27, 1977 to October 14, 1976. On June 16, 1976 respondent filed a notice of appeal from the judgment and claimed an automatic statutory stay pursuant to CPLR 5519 (subd [a], par 1). The respondent superintendent refused to implement the judgment and delayed perfecting the appeal in the belief that our decision in Matter of *832Colon v Vincent (49 AD2d 939) would be reversed by the Court of Appeals. Petitioner’s motion to vacate the stay was denied by this court on December 7, 1976. On December 15, 1976, relator commenced this proceeding. The proceeding should not have been dismissed. Petitioner was clearly entitled to conditional release under our decision in Matter of Colon v Vincent (supra); the writ was not brought as a substitute for appeal, but as a result of respondent’s refusal to implement the judgment in the CPLR article 78 proceeding and his dilatory tactics in perfecting the appeal from that judgment. "Departure from traditional orderly proceedings, such as appeal, should be permitted * * * when dictated, as here, by reason of practicality and necessity” (People ex rel. Keitt v McMann, 18 NY2d 257, 262). Hopkins, Acting P. J., Latham, Damiani and Rabin, JJ., concur.