People ex rel. Simpkins v. Pilgrim State Hospital 13 A.D.2d 991

Motion by appellant (relator) for leave to prosecute his appeal on the original papers and for assignment of counsel. The appeal is from an order of the Supreme Court, Suffolk County, made upon a decision rendered on November 3, 1960, after a hearing, dismissing a writ of habeas corpus and remanding relator to *992respondent for further care and treatment. Relator has been in respondent’s custody since January 10, 1952, upon a commitment issued out of the County Court, Kings County, certifying that he is incapable of understanding the charge or proceedings against him or of making his defense, in a criminal action in which he had been indicted for grand larceny in the second degree (see Code Crim. Pro., § 662-b). The criminal action gave rise to relator’s present confinement. Although the proceedings upon a writ of habeas corpus are civil in nature, when the confinement springs from a criminal charge against the relator, we are disposed to grant the motion for leave to appeal upon the original papers and for the assignment of counsel, even though, as here, no merit appears to be shown by the papers on the motion. This conclusion, we believe, is required by the recent decisions relating to the right of an indigent appellant to prosecute his appeal (ef. Griffin v. Illinois. 351 U. S. 12; People v. Pitts, 6 N Y 2d 288; People v. Wilson, 7 N Y 2d 568). Motion granted. The appeal will be heard on the original papers (including the typed minutes) and on appellant’s typewritten brief, which shall include a copy of the opinion, if any, of the court below. The appellant is directed to file six copies of his typewritten brief and to serve one copy on the Attorney-General. Appellant’s time to perfect the appeal is enlarged to the October Term, beginning October 2, 1961; appeal ordered on the calendar for said term. Warren Liburt, Esq., 48 Elm Street, Huntington, New York, is assigned as counsel to prosecute the appeal. Beldock, Acting P. J., ICleinfeld, Christ, Pette and Brennan, JJ., concur.