People ex rel. Wuckich v. Major

12 A.D.2d 1003 | N.Y. App. Div. | 1961

Order reversed, without costs of this appeal to either party and matter remitted to Onondaga County Court for further proceedings in accordance with the memorandum. Memorandum: Upon the papers presented in this habeas corpus proceeding we construe the petition as seeking petitioner’s release because of failure of the District Attorney to comply with section 669-a of the Code of Criminal Procedure. Thus limited we conclude that a hearing should have been held to determine whether the petitioner had served a proper notice as required by section 669-a. The court should make detailed findings as to what was done by the petitioner to bring the matter to the attention of the District Attorney. All concur except McClusky, J., who dissents and votes for affirmance in the following memorandum: The prisoner has not established by the record before us that he complied with section 669-a of the Code of Criminal Procedure. I disagree with the court below in holding that habeas corpus is not the proper remedy under this particular section. (Appeal from order of Onondaga County Court dismissing the writ of habeas corpus and remanding relator to the custody of the Sheriff of Onondaga County.) Present — Williams, P. J., Bastow, Goldman, Halpern and McClusky, JJ.