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PEOPLE STATE NEW YORK EX REL. BERLIN LEON HINES v. EDWIN F. MARKLEY (11/04/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


November 4, 1968

THE PEOPLE OF THE STATE OF NEW YORK EX REL. BERLIN LEON HINES, APPELLANT,
v.
EDWIN F. MARKLEY, AS WARDEN OF THE COUNTY JAIL OF WESTCHESTER COUNTY, RESPONDENT

In a habeas corpus proceeding, relator appeals, as limited by his brief, from so much of a judgment of the County Court, Westchester County, entered March 7, 1968, as dismissed the writ and remanded him to the custody of respondent, to be turned over to the State of Connecticut.

Beldock, P. J., Christ, Brennan, Rabin and Benjamin, JJ., concur.

Judgment reversed insofar as appealed from, on the law, without costs, and proceeding remitted to the County Court, Westchester County, for hearing and determination on such factual issues as relator has properly raised in his petition and in his answer to the amended return, particularly whether he was present in the demanding State when the underlying charge of breaking and entering was allegedly committed (People ex rel. Higley v. Millspaw, 281 N. Y. 441, 445; People ex rel. Gottschalk v. Brown, 237 N. Y. 483, 486; People ex rel. Grant v. Doherty, 21 A.D.2d 829). The findings of fact below have not been affirmed.

19681104

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