Opinion
Argued May 1, 1979
Decided May 10, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH JIUDICE, J.
Robert Abrams, Attorney-General (Burton Herman and Samuel A. Hirshowitz of counsel), for appellants.
Joel P. Gorham, Daniel J. Steinbock and David Steinberg for respondent.
Order reversed, without costs, and the petition dismissed upon the ground that the remedy of habeas corpus is not available since relator will not be entitled to immediate release, in view of counsel's advice that relator is now incarcerated as the result of a new charge (People ex rel. Lane v Vincent, 32 N.Y.2d 940; People ex rel. Fitzgerald v Casscles, 28 N.Y.2d 866).
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG.