People ex rel. Conover v. Herold

24 A.D.2d 773, 263 N.Y.S.2d 858, 1965 N.Y. App. Div. LEXIS 3193

Opinion

Reynolds, J.

Appeal from an order of the Supreme Court, Clinton County, dismissing appellant’s writ of habeas corpus and remanding him to Dannemora State Hospital. Appellant seeks transfer from Dannemora to Clinton Prison. In November, 1962, appellant was afforded a hearing as to his transfer to Dannemora and a determination that such transfer was proper was made from which no appeal was taken. Then in December, 1963, appellant brought the instant proceeding seeking a jury trial on the question of his present sanity. Clearly he is not entitled to a jury trial (e.g., People ex rel. Kamisaroff v. Johnston, 13 N Y 2d 66; People ex rel. Powers v. Johnston, 17 A D 2d 872, mot. for lv. to app. den. 12 N Y 2d 644), and since the maximum of his sentence has not expired, his detention at the hospital is subject to the provisions of section 386 of the Correction Law (e.g., People ex rel. Elm v. Johnston, 11 A D 2d 584; People ex rel. Sacconanno v. Shaw, 4 A D 2d 817). Judgment affirmed, without costs. Gibson, P. J., Herlihy, Aulisi and Hamm, JJ., concur.