
    The People of the State of New York, Plaintiff, v. Erasmo Nieves, Defendant.
    County Court, Kings County,
    November 22, 1957.
    
      
      Edward S. Silver, District Attorney (William I. Siegel of counsel), for plaintiff.
    No appearance for defendant.
   Hyman Barshay, J.

This is an application for an order directing the return of the defendant from Matteawan State Hospital to this court for immediate trial, on the ground that he is. presently sane and that further delay would deprive him of his constitutional and statutory right to a speedy trial. On March 11, 1955 the defendant was committed by the Honorable John E. Starkey, a City Magistrate of the City of New York, to the Kings County Hospital for psychiatric observation. On March 23, 1955, pursuant to section 872 of the Code of Criminal Procedure, he was certified for commitment to Matteawan State Hospital Avhere he is presently confined, by the Honorable Benjamin Brenner, a Justice of the Supreme Court. On April 21, 1955 an indictment, charging the defendant with murder in the second degree, Avas filed with the clerk of this court. Section 872 of the Code of Criminal Procedure provides that, where a defendant is indicted subsequent to commitment, a “ warrant shall be lodged with the director of the institution where he is confined and all further proceedings shall be had as if he had been indicted prior to his commitment.”

Until the court is advised by the director of the institution, that a defendant is no longer in such state of insanity as to be incapable of understanding the charge against him or of making his defense thereto, the trial or proceedings against him must be suspended. (Code Grim. Pro., § 662-b.)

If it is the defendant’s contention that he is presently sane, that he is capable of understanding the charge against him and of making his defense, he should apply for his discharge from Matteawan State Hospital by writ of habeas corpus in the county of his detention.

The motion is, therefore, in all respects denied. Submit order.  