People v. Kelly

Motion for reargument denied. All concur, except Conway, J., not sitting, and Fuld, J., who dissents in the following memorandum: Under the circumstances of this case, the trial court should have held a hearing, when defendant moved for a new trial upon the ground of newly discovered evidence (Code Crim. Pro., § 465, subd. 7), to determine whether the state-employed psychiatrist would have testified — as defense counsel asserted in his affidavit in support of the motion — that it was his opinion that defendant was insane at the time of the homicide. Accordingly, I dissent and vote to withhold decision upon the present motion for reargument pending a hearing by the trial court in connection with the defendant’s application for a new trial. [See 304 N. Y. 662, 798.]