People ex rel. Fitzgerald v. Casscles

No opinion. Rabin, Munder and Benjamin, JJ., concur; Christ, P. J., and Hopkins, J., dissent and vote to reverse the judgment and to remand the proceeding to the Special Term, with direction (1) to join or permit joinder of such party or parties as may be necessary to effect correction of the commitment papers and (2) to grant credit to relator for the period December 6, 1966 to January 22, 1967, in accordance with the following memorandum: During the stated period, relator was actually confined in the Kings Park State Hospital as a mental patient, following his arrest for the crime for which he was subsequently convicted and sentenced, and towards which sentence he seeks credit, pursuant to an order of the court granted upon a certificate of two examining physicians. In the circumstances, he is entitled to credit for the time spent in the hospital (former Penal Law, § 2193, subd. 1; of. People ex rel. Striar v. Fay, 14 Misc 2d 231, 232-233; see Practice Commentary on Penal Law, § 70.30 [subd. 3], in McKinney's Cons. Laws of N. Y., Book 39, p. 142; see People v. Nagler, 21 A D 2d 490, 494-495).