People v. Gould

29 A.D.2d 668, 287 N.Y.S.2d 875, 1968 N.Y. App. Div. LEXIS 4864

Opinion

Upon defendant’s notice of appeal which states that the appeal is from a judgment of the County Court, Orange County, rendered March 4, 1964, this court treats the appeal as from the resentencing judgment rendered by said court on November 10, 1966 (Code Grim. Pro., § 524-c). Action remitted to the trial court for the purpose of a hearing to be held and a determination to be made, by a Judge other than the Trial Judge, on the issue of defendant’s sanity at the time of trial. If it is found defendant was not sane at that time, a new trial should be ordered; if the contrary is found, the judgment should be affirmed (People v. Gonzales, 20 N Y 2d 289, 293-294; People v. Hudson, 19 N Y 2d 137; Pate v. Robinson, 383 U. S. 375, 378; People v. Gomez, 28 A D 2d 737). In line with the procedure indicated (see People v. Gonzales, supra), the hearing should be held before a Judge other than the Trial Judge so that the latter can be called upon to testify concerning his observations of defendant at the time of the trial. Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.