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PEOPLE EX REL. WURTHMANN v. KIRKPATRICK

59 A.D.3d 1082 (2009)

___ N.Y.S.2d ___

THE PEOPLE OF THE STATE OF NEW YORK ex rel. DENNIS WURTHMANN, Appellant, v. ROBERT A. KIRKPATRICK, Superintendent, Wende Correctional Facility, Respondent.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided February 6, 2009.

It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the first three decretal paragraphs and as modified the judgment is affirmed without costs.

Memorandum: Supreme Court erred in converting this proceeding seeking a writ of habeas corpus to a proceeding pursuant to CPLR article 78, and we therefore modify the judgment accordingly (see People ex rel. Smith v Mantello, 167 A.D.2d 912

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