Opinion
February 23, 1971
Judgment, Supreme Court, New York County, entered November 19, 1969, convicting defendant of possession of burglar tools (Penal Law, § 140.35) and sentencing him to Elmira Reception Center as a youthful offender, unanimously affirmed. The defendant, represented by an attorney, at sentence, was informed that he had been certified as an addict. Although, at this time, he had the right to have a hearing before the court or at a jury trial (Mental Hygiene Law, § 208, subd. 1), the defendant chose to stand mute, through his attorney, and declared he was ready for sentence. The court acted properly in inferring the defendant did not wish to be certified as an addict, although his language was imprecise in declaring it "elects not to commit the defendant to the custody of the Narcotic Addiction Control Commission". There is no such power of "election" in the court in this type of proceeding. However, in view of the lapse of time, it would be unrealistic now to consider certification, and the defendant, represented by counsel, having avoided certification at the time of sentence, should not, at this late date, be heard to complain.
Concur — Stevens, P.J., Capozzoli, McGivern, Markewich and Kupferman, JJ.