People ex rel. O'Melia v. Johnston , 18 A.D.2d 1112 ( 1963 )

Appeal from an order of the Supreme Court, Clinton Cornffy, dismissing relator’s writ of habeas corpus after a hearing and remanding relator to custody at the Dannemora State Hospital. Relator’s sentence to a term of from 10 to 20 years upon a conviction of robbery, third degree, expired August 30, 1957, but after compliance with the then provisions of section 384 of the Correction Law, a retention order was issued on the grounds of continued insanity and unfitness for cure in a civil hospital. Twice previously since March of 1961 relator has been afforded hearings upon writs of habeas corpus seeking his release from custody and on each occasion has been remanded to custody. Prior to the second hearing relator was examined pursuant to a court order by a qualified independent psychiatrist whose testimony revealed continued mental difficulties. While no psychiatric examination was held prior to the present hearing, section 226 of the Mental Hygiene Law gives probative value to prior testimonj'- concerning relator’s mental condition without the necessity of recalling the witness who gave such testimony. On the basis of this prior testimony and relator’s psychiatric history and after hearing relator’s contentions in support of the writ the court below denied the relief sought. On the present record we find that relator’s rights have been properly protected under the rule of People ex rel. Brown v. Johnston (9 N Y 2d 482) and find no reason to disturb the determination of the court below. Order unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.