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PEOPLE EX REL. PROSSER v. MARTIN

306 N.Y. 710 (1954)

The People of the State of New York ex rel. Howard Prosser, Respondent, v. Walter B. Martin, as Warden of Attica State Prison, Appellant. The People of the State of New York, Appellant.

Court of Appeals of the State of New York.

Decided January 15, 1954

Attorney(s) appearing for the Case

Nathaniel L. Goldstein, Attorney-General (Herman N. Harcourt, Wendell P. Brown and J. Bruce MacDonald of counsel), for the People of the State of New York, appellant.

David J. Read for respondent.

LEWIS, Ch. J., CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur in Per Curiam opinion; VAN VOORHIS, J., concurs in the result.

Per Curiam.

The legality of a sentence may be tested in a habeas corpus proceeding. When an order in such a proceeding directs the sentencing court to resentence the relator, such court is under the necessity of resentencing him within a reasonable time. If it fails to do so, the District Attorney is under a duty to make an application pursuant to article 78 of the Civil Practice...

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