
    Second Department,
    October, 1973
    (October 4, 1973)
    The People of the State of New York ex rel. Yves Lops, by Samuel Dawson, Relator, v. Commissioner, New York State Department of Mental Hygiene, Respondent.
   On the return in this court of the writ of habeas corpus herein (production of the relator was waived), the proceeding is hereby transferred to the Special Term of the Supreme Court in Orange County. It appears that the relator is detained in a State institution located within Orange County (CPLR 7004, subd. [c]). It has recently been held in Jackson v. Indiana (406 U. S. 715, 738): “that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commiti»ent proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.” We are remanding this matter for a hearing in compliance with the above-quoted statement. Hopkins, Acting P. J., Munder, Latham, Shapiro and Brennan, JJ., concur.  