Opinion
April 26, 1971
Motion for permission to proceed as a poor person and for assignment of counsel upon appeal from an order which continued appellant's retention at Dannemora State Hospital for a period not to exceed one year. Motion denied, without costs, and appeal dismissed sua sponte. Where the continued retention of a person adjudged to be mentally ill is authorized by court order, such person may either (1) apply within 30 days for a rehearing and a jury or nonjury review of such order (Correction Law, § 408, subd. 9), or (2) he may forego such application and prosecute an appeal directly to this court from such order. He cannot do both. Here appellant has elected to make application for a rehearing and jury review of the order of retention. Accordingly, his appeal must be dismissed. (See Matter of Narcotic Addiction Control Comm. v. Couloufacos, 29 A.D.2d 199.) Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.