People v. Kelly

108 N.E.2d 619, 304 N.Y. 760, 1952 N.Y. LEXIS 962

Opinion

Motion for reargument denied. All concur, except Conway, J., not sitting, and Fuld, J., who dissents in the following memorandum: Under the circumstances of this case, the trial court should have held a hearing, when defendant moved for a new trial upon the ground of newly discovered evidence (Code Crim. Pro., § 465, subd. 7), to determine whether the state-employed psychiatrist would have testified — as defense counsel asserted in his affidavit in support of the motion — that it was his opinion that defendant was insane at the time of the homicide. Accordingly, I dissent and vote to withhold decision upon the present motion for reargument pending a hearing by the trial court in connection with the defendant’s application for a new trial. [See 304 N. Y. 662, 798.]