Opinion
July 10, 1967
Order of the Supreme Court, Kings County, entered April 14, 1964, which denied after a hearing defendant's coram nobis application, reversed on the law and the facts, and action remitted to the Supreme Court, Kings County, for a hearing de novo, before a Justice other than the one who presided at the original hearing, on the question whether at the time appellant pleaded guilty and at the time of sentencing, he was "incapable of understanding the charge, indictment or proceedings or making his defense" (Code Crim. Pro., § 658). In our opinion, the predispositions of the Trial Judge did not make him an "interested" party within the meaning of section 14 Jud. of the Judiciary Law ( People v. Owen, 205 Misc. 415, 418; cf. People ex rel. Stickle v. Fay, 19 A.D.2d 592, affd. 14 N.Y.2d 683 with People v. Bennett, 19 A.D.2d 929, revd. 14 N.Y.2d 851). Where the issue of sanity at the time of pleading and sentence is raised, however, it is preferable to hold the hearing before a Judge other than the one who accepted the plea and sentenced the defendant ( People v. Hudson, 19 N.Y.2d 137, 140). Where a defendant has been denied a fair hearing because of the predilections of the Judge presiding, due process requires that a new hearing be held before an impartial court (cf. Matter of Murchison, 349 U.S. 133, 136). Rabin, Acting P.J., Hopkins and Benjamin, JJ., concur; Munder and Nolan, JJ., dissent and vote to affirm the order, without prejudice to renewal when petitioner is certified to be sane ( People v. Booth, 17 N.Y.2d 681).