SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
October 23, 1969
THE PEOPLE OF THE STATE OF NEW YORK EX REL. BENJAMIN FRANKLIN WALKER, APPELLANT,
DANIEL MCMANN, AS WARDEN OF AUBURN STATE PRISON, RESPONDENT
Appeal from judgment of Cayuga County Court dismissing writ of habeas corpus.
Goldman, P. J., Witmer, Gabrielli, Moule and Henry, JJ.
Memorandum: The relator contends that his sentence was defective in that it did not name the institution in which the sentence was to be served as required by section 2180 of the Penal Law as it existed when relator was sentenced June 8, 1966. Such a defect is technical and not one of substance and would only entitle relator to a resentencing, not release from imprisonment. However, relator waived his right to resentencing at the time of the hearing on his petition. The court below in substance informed the relator that the effect of sustaining his contention would be his return to New York County for that purpose. Both the relator and his counsel indicated that they were only interested in his release and not resentence.
Judgment unanimously affirmed.
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