Opinion
July 6, 1966
In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, entered November 8, 1965, which dismissed the writ, after a hearing, and remanded him to respondent's custody. Judgment reversed on the law, without costs, and proceeding remitted to the court below for the purpose of holding a further hearing. No questions of fact have been considered. The sole issue in this habeas corpus proceeding is whether the relator, now an inmate of Matteawan State Hospital by commitment of the Court of General Sessions, New York County, dated July 19, 1957, is presently capable of understanding the criminal charge lodged against him, and of making his defense. In our opinion, the record does not provide an adequate basis upon which to make a reasoned determination as to the relator's ability to understand the charge against him and to make his defense. Viewing the case in its entirety, we find that the court should be assisted by the opinion of an independent, disinterested psychiatrist. The law has provided the court with the power to be informed by such expert testimony under the provisions of section 32 Jud. of the Judiciary Law. Accordingly, the Attorney-General is directed to submit an order on notice to the attorney for the relator, providing for the appointment of a psychiatrist to be selected by the court, ordering that the relator be examined by such psychiatrist, that the hospital records and the briefs of counsel be made available to him, that he make a written report to the court, copies of which are to be sent to the Attorney-General and the attorney for the relator, and that thereafter he shall be available for examination by either or both parties upon the resumption of the hearing to be noticed by either party ( People ex rel. Butler v. McNeill, 30 Misc.2d 722, 729). Christ, Acting P.J., Brennan, Hill, Rabin and Hopkins, JJ., concur.