
    The People of the State of New York ex rel. Eugene Fitzgerald, Appellant, v. John L. Casscles, as Warden of Sing Sing Prison, Respondent.
    Argued April 20, 1971;
    decided May 12, 1971.
    
      
      Alfred L. Jacobsen, III for appellant.
    
      Louis J. Lefkowits, Attorney-General (Hillel Hoffman and Samuel A. Hirshowits of counsel), for respondent.
   Order affirmed, without costs, in the following memorandum: The order appealed from should be affirmed on the sole ground that the relator is not entitled to a writ of habeas corpus since the relief requested would not result in his discharge from prison. (See, e.g., People ex rel. Dellavalle v. McGinnis, 21 N Y 2d 795; People ex rel. Reynolds v. Martin, 3 N Y 2d 217, 223.) The affirmance is, however, without prejudice to the relator’s institution of an appropriate proceeding to have the court ascertain the time he spent in “ custody ” at Kings Park Hospital and have it credit such time toward his sentence.

Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Hibson.  