People ex rel. Wilson v. Kelly

Judgment unanimously affirmed. Memorandum: Relator appeals from a judgment which dismissed his habeas corpus petition seeking a recalculation of time served on a vacated sentence. Since relator is now incarcerated in a Federal prison and is no longer in State custody, he is not entitled to a writ of habeas corpus because the relief requested would not result in his immediate release from prison (see, People ex rel. Lane v Vincent, 32 NY2d 940). Accordingly, we treat this matter as a CPLR article 78 proceeding (see, CPLR 103 [c]; People ex rel. Gonzalez v Smith, 104 AD2d 725).

We agree with Special Term that respondent properly calculated petitioner’s sentence on a 1983 robbery conviction to run consecutively to the undischarged portion of his sentence on a 1962 manslaughter conviction (see, Penal Law § 70.25 [2-a]; *990Matter of Keffer v Wilkinson, 122 AD2d 475). After petitioner’s robbery conviction was reversed (see, People v Wilson, 106 AD2d 146), respondent correctly determined that petitioner’s new sentence on that charge commenced on March 23, 1983, the date petitioner was returned to the New York State Department of Correction as a parole violator (see, Penal Law § 70.30 [5]). Accordingly, petitioner received all the jail time to which he was entitled and the petition, as converted, must be dismissed. (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J.—habeas corpus.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.