Opinion
May 17, 1971
In this proceeding, instituted pursuant to CPLR article 78, petitioner seeks a judgment staying the County Court of Rockland County from directing him to submit to a medical examination pursuant to section 207 of the Mental Hygiene Law. Application granted, without costs, to the extent of remanding the proceeding to the County Court of Rockland County for a determination as to whether petitioner indicates or shows symptoms, or it otherwise appears, that he is a narcotic addict who should undergo a medical examination to determine whether he is a narcotic addict. The mere fact that petitioner was under indictment in itself does not serve as a basis for the medical examination prescribed by section 207 of the Mental Hygiene Law. Rabin, P.J., Hopkins, Munder and Martuscello, JJ., concur; Gulotta, J., dissents and votes to dismiss petition on the ground that the mere fact that petitioner is charged with a violation of article 220 of the Penal Law in and of itself makes an examination mandatory under section 207 of the Mental Hygiene Law. In this case petitioner, an accused marijuana seller, resists a physical examination pursuant to section 207 of the Mental Hygiene Law, claiming he has shown no symptoms of narcotic addiction. Thus, the issue is more clearly defined than in People v. Olson ( 36 A.D.2d 966), where both sides agreed there had been such a showing. I agree that a person charged with a violation of article 220 of the Penal Law who also shows symptoms of addiction must be examined; but, for the reasons set forth in my dissent in Olson, I do not agree that he may be examined only when, in addition to the charge, he shows symptoms. In my opinion it is sufficient justification to order such an examination where the charge is a violation of article 220 of the Penal Law, without showing anything more.