Opinion
June 15, 1967
In this article 78 proceeding, petitioner seeks an order directing the respondent Justice of the Supreme Court of the State of New York to conduct a hearing to determine whether or not defendant was mentally incapable of representing himself in the appellate courts of this State on his appeal from a judgment of the former Bronx County Court, entered November 1, 1960, convicting him of possessing a concealed, loaded firearm in violation of subdivision 5-a (now subd. 2) of section 1897 of the Penal Law, and a judgment of said court, entered March 14, 1962, convicting him of the crimes of burglary, second degree, maiming, assault in the second degree, assault in the third degree, and conspiracy. Respondents cross-move to dismiss the petition for legal insufficiency. The judgment entered November 1, 1960, was affirmed here ( 20 A.D.2d 850), and by the Court of Appeals ( 15 N.Y.2d 65). The judgment entered March 14, 1962, was affirmed here
( 21 A.D.2d 854), and by the Court of Appeals ( 16 N.Y.2d 504). Petitioner moved in the Court of Appeals to vacate said judgments of affirmance. The motion was denied "without prejudice to the bringing of an appropriate proceeding by defendant or his committee to test whether defendant was, in fact, mentally incapable of representing himself in the Appellate Courts of the State of New York". Petitioner moved before the Supreme Court, New York County, for a hearing on his mental capacity to represent himself on the appeals from said judgments of conviction. The said application was denied on January 11, 1967. Petitioner did not appeal therefrom. Instead, on April 20, 1967, petitioner instituted this proceeding. We may not entertain the application as if an appeal from the order of January 11, 1967, the time for such an appeal having previously elapsed. (Code Crim. Pro., § 521.) Nor may we entertain the proceeding for the purpose of reviewing a determination in a criminal matter. (CPLR 7801, subd. 2.) We have, nevertheless, addressed ourselves to the merits, and have concluded that petitioner has failed to establish grounds for a hearing on his sanity during the pendency of his said appeals. Petitioner was adjudged legally sane prior to his sentence following his conviction for the crimes of burglary, maiming, assault and conspiracy ( 33 Misc.2d 938). The moving papers fail to show any change in petitioner's mental condition. Respondents' cross motions to dismiss the petition are granted, without costs and without disbursements.
Concur — Stevens, J.P., Eager, Rabin, McNally and McGivern, JJ.