People ex rel. Kern v. Silberglitt

Special Term properly dismissed petitioner’s writ of habeas corpus. The penitentiary sentence imposed raises an irrebuttable presumption that the court did not find the defendant incapable of being substantially benefited by a commitment to a correctional and reformatory institution (People v. Thompson, 251 N. Y. 428). It is the sentence that controls and not the preliminary remarks of the sentencing judge, despite any apparent inconsistency (cf. People ex rel. Standik v. Ashworth, 66 N. Y. S. 2d 547, affd. 266 App. Div. 775; People ex rel. Granza v. Johnston, 67 N. Y. S. 2d 181, affd. 271…