
    The People of the State of New York ex rel. Charles Fazio, Sr., Appellant, against John F. McNeill, as Superintendent of Matteawan State Hospital, Respondent.
   In a proceeding to bring up the body of Charles Fazio, Jr., an inmate of Matteawan State Hospital, the appeal is from an order dismissing the writ and remanding the prisoner to custody. Order unanimously affirmed, without costs. The prisoner after indictment for murder in the first degree and assault in the first and second degrees, was committed to Matteawan State Hospital under the provisions of section 662-b of the Code of Criminal Procedure. In the petition it is alleged that he is able and willing to stand trial under the indictment. The prisoner is a victim of amnesia and there is evidence in the record that he is a schizophrenic, and is unable to talk rationally about the crime of which he is accused. Although it is undisputed that he is capable of understanding the charge against him, the record justifies the finding implicit in the decision at Special Term that he is in such a state of insanity as to be incapable of making his defense. Section 662-b of the Code of Criminal Procedure does not authorize his discharge to the court for trial if he is incapable either of understanding the charge against him or of making his defense. (Cf. People ex rel. Egerton v. McNeill, 3 A D 2d 855; People ex rel. Bernstein v. McNeill, 48 N. Y. S. 2d 764.) Present — Nolan, P. J., Wenzel, Beldock, Hallinan and Kleinfeld, JJ.  