
    The People of the State of New York ex rel. Albert Z. Standik, Relator, against Harry T. Ashworth, as Warden of the Penitentiary of the City of New York, Respondent.
    Supreme Court, Special Term, Bronx County,
    January 28, 1943.
   John E. MoG-eehan, J.

The writ is dismissed and the relator is remanded. Notwithstanding the remarks of the sentencing court at the time sentence was imposed, this court cannot adjudicate that the sentencing court legally found the defendant beyond the realm of reformation contemplated by the Parole Commission Law (Correction Law, art. 7-A). An appellate court reviewing the matter of the sentence upon a direct appeal might arrive at a different conclusion but this court upon this application, cannot act in the capacity of an appellate court as to the sentence imposed and accordingly finds itself bound by the rule of law that the sentencing court pronouncing the sentence imposed impliedly found the defendant not to be insane or mentally or physically incapable of being substantially benefited by the correctional and reformatory purposes of the sentence imposed by the court.  