People ex rel. Berry v. Klein

■Hammer, J.

The writ is dismissed and the prisoner is remanded.

The question raised by the relator on the hearing on this writ of habeas corpus was passed upon by this court as early as 1943, in the case of People ex rel. Pastor v. Ashworth (66 N. Y. S. 2d 548), from which I quote the following: “ Despite the statements made by the sentencing judge, the appellate courts have ruled that a sentence under the Parole Law is necessarily based upon a previous determination that the offender is not incapable of correctional and reformatory treatment. It seems necessary to remark that sentencing judges…