People ex rel. Mello v. McDonnell

281 A.D. 970 | N.Y. App. Div. | 1953

Order, dismissing the writ of habeas corpus and remanding the relator to the New York City Penitentiary, unanimously affirmed on the ground that the relator is under a sentence pronounced by the County Court having competent jurisdiction and its terms have not expired. However, as the County Court did not state that the term imposed was to be consecutive, the presumption that the term was concurrent with the term of the prior conviction controls (People ex rel. Gerbino v. Ashworth, 267 App. Div. 579, 581). Present ■ — ■ Peck, P. J., Glennon, Bore, Yan Yoorhis and Bergan, JJ.