Majority
Appeal from a judgment of the Supreme Court at Special Term, entered September 4, 1970 in Clinton County, which denied an application for a writ of habeas corpus without a hearing. In compliance with the procedure required by United States ex rel. Schuster v. Herold ( 410 F. 2d 1071 ) on February 3, 1970 appellant was brought before the court by respondent for a six-month retention order which was granted when appellant refused to participate in the hearing. On July 23, 1970 a further retention order for one year pursuant to section 408 of the Correction Law was sought. Appellant requested a hearing which was granted and he was found mentally ill. He then petitioned for a writ of habeas corpus claiming both orders were improperly issued because he was not accorded a jury trial on the issue of insanity. The application was denied without a hearing. It is from this denial that he appeals. Subsequent to the second retention order a review was requested of that order and the jury found appellant to be mentally ill. There is no merit to appellant’s contention that he was entitled to a jury trial at the initial hearing and that the denial thereof voided the retention order of August 13,1970. (See People ex rel. Waters v. Herold, 34 A D 2d 600 ; Correction Law, § 408, subds. 8, 9.) Judgment affirmed, without costs. Reynolds, J. P., Greenblott, Cooke, Sweeney and Simons, JJ., concur.