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…