
    The People of the State of New York ex rel. James Johnson, Appellant, v. W. Cecil Johnston, as Superintendent of Matteawan State Hospital, Respondent.
   In a habeas corpus proceeding to test the issue of the sanity of a person committed to the Matteawan State Hospital, the relator appeals from a judgment of the Supreme Court, Dutchess C.ounty, entered June 18, 1964, which dismissed the writ after a hearing and remanded him to the respondent’s custody. Judgment reversed on the law and the facts,.without costs, and proceeding remitted to the court below for the purpose of (a) holding a further hearing on the issue presented; and (b) making a determination de novo on the basis of the proof adduced upon such further hearing. Upon the further hearing the court should consider the entire medical record of the-petitioner and any other medical evidence obtainable from the Matteawan State Hospital. The court must also consider the appearance and behavior of the petitioner. The court may, in its discretion if deemed advisable, order an examination by disinterested medical experts pursuant to statute (Judiciary Law, § 32). We are also of the opinion that prior to the hearing it should be ascertained whether the prosecuting officer will consent to a dismissal of the indictment pursuant to the statute (Code Grim. Pro., § 662-b, subd. 3) in order that the court may then consider proceeding under that provision of law. The court may also, pursuant to sections 722 through 722-e of the County Law and section 188 of the Code of Criminal Procedure, assign counsel to the relator as an indigent patient (see L. 1965, eh. 878). Beldock, P. J., Ughetta, Christ, Brennan and Honkins, JJ., concur.  