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PEOPLE STATE NEW YORK EX REL. PERRY BURNS v. RUSSELL G. OSWALD (04/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 21, 1969

THE PEOPLE OF THE STATE OF NEW YORK EX REL. PERRY BURNS, APPELLANT,
v.
RUSSELL G. OSWALD, AS COMMISSIONER OF NEW YORK DIVISION OF PAROLE, RESPONDENT

Appeal by petitioner from a judgment of the Supreme Court, Westchester County, dated June 12, 1968.

Rabin, Acting P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.

Judgment affirmed, without costs. The application at bar sought to compel the Division of Parole to amend its records by giving appellant credit against a sentence to State prison for certain time during which he was confined in New York City prisons. It was made pursuant to article 78 of the CPLR and was in the nature of mandamus. Special Term treated it as a habeas corpus proceeding in both its decision and judgment. The proceeding was properly brought under article 78 and we have considered it as one so brought (see Matter of Browne v. New York State Bd. of Parole, 10 N.Y.2d 116, 121-122). So considered, and on the merits, we find no merit in the application. It was properly dismissed (People ex rel. Petite v. Follette, 24 N.Y.2d 60; see, also, People ex rel. Kenny v. Jackson, 4 N.Y.2d 229; Matter of Perillo v. New York State Bd. of Parole, 4 A.D.2d 355, affd. 4 N.Y.2d 1013; People ex rel. Paqua v. Fay, 8 A.D.2d 856, affd. 8 N.Y.2d 897; People ex rel. Miles v. LaVallee, 16 A.D.2d 710).

Disposition

Judgment affirmed, without costs.

19690421

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