
    The People of the State of New York, Appellant, v. Lewis Wolfe, Respondent.
   Order of the County Court, Kings County, granting motion to vacate judgment of conviction of the crime of murder in the first degree, reversed on the law and the facts and the motion denied. We will assume that the court had jurisdiction to make the order. The order sets aside a verdict six years after its rendition. Unless and until the reversal of the judgment, the finding of the jury, on a disputed issue of fact, is conclusive that he was sane when he killed his wife on December 30, 1943. The court observéá nothing in his demeanor throughout the trial during which he testified at length, to suggest that he was incapable of understanding the proceedings or making his defense: Nor was there any Claim, prior to the trial, at the trial or even now, that the attorneys .for defendant were unable to confer with him. A psychiatrist called as a Witness of the court, who observed defendant throughout the trial, was of opinion that hé Wab sarie. A psychiatrist engaged by defendant arid who testified on his behalf at the trial *aS Of opinion: that he was sarie at or shortly prior to the time Of trial. It was subsequent to' the trial that the witnesses upon whom the court primarily relies saw the defendant ftir the" first time. His merital condition at that time may be attributable, at least iri part, to the impact of the adverse verdict. Thebe witnesses did not atternpt to testify as to the sariity of defendant at the time of trial. The proof fails to show that defendant was insane at the timé of trial within the contémplátibri of sectiori 1120 of the Penal LaW and section 658 of the Code of tinfhinál Procedure. The basic error of .the County Court, apart from its evaluation of the proffered evidentiary facts, is that it has allocated bodies of evidériee to the time of the trial, although they were given in respect Of liter of subsequent dates after the adverse verdict. The Legislature his aihply provided for exemption frorfi punishmerit of a felon who has become insane after judgriiént Of Conviction. (Correction Law, árt. 15; Code Crirh. Pro. § 495-á:j Carswfell, Acting P. J., Johnston, Adel, Wenzel and MaeCrate, JJ.; concur. [199 Sise. 413.]  