Opinion
April 19, 1971
Two judgments of the Supreme Court, Dutchess County: the first, dated March 15, 1971, dismissing a petition pursuant to article 78 of the CPLR; the second, dated March 19, 1971, dismissing a petition for a writ of habeas corpus, affirmed, without costs. The notices of appeal herein are amended to correctly describe the judgments appealed from (CPLR 5520, subd. [c]). In our view, petitioner, who is presently confined at Matteawan State Hospital pursuant to section 662-b of the Code of Criminal Procedure, is ineligible at this time for transfer to a civil hospital under the jurisdiction of the Department of Mental Hygiene (Mental Hygiene Law, § 70; cf. United States ex rel. von Wolfersdorf v. Johnston, 317 F. Supp. 66). However, if he be so advised, he may challenge the outstanding indictment in the county where it was found or seek its dismissal pursuant to subdivision 3 of section 662-b, and then, if successful, compel his transfer to a civil institution for further treatment ( Matter of Negro v. Dickens, 22 A.D.2d 406; Neely v. Hogan, 62 Misc.2d 1056). Martuscello, Acting P.J., Latham, Gulotta, Christ and Benjamin, JJ., concur.