Opinion
December 3, 1970
Appeal from the Wayne County Court.
Present — Del Vecchio, J.P., Marsh, Gabrielli and Moule, JJ.
Judgment unanimously modified on the law and facts in accordance with the memorandum herein, and as modified, affirmed. Memorandum: On November 6, 1959 defendant pleaded guilty to an indictment charging sodomy in the first degree, two counts of sodomy in the second degree, all in violation of section 690 of the Penal Law and two misdemeanor counts of endangering the life and health of a child in violation of section 483 of the Penal Law. He was given an indeterminate sentence of one-day-to-life. Thereafter this sentence was vacated for failure to comply with the mandate of People v. Bailey ( 21 N.Y.2d 588) and it was directed that a new psychiatric examination be conducted and a report made thereon to meet the requirements of section 2189-a of the Penal Law as construed by People v. Jackson ( 20 A.D.2d 170). Following the filing of reports by the psychiatrists, a hearing was held in February, 1969 to determine whether (1) defendant is capable of being benefited by confinement and (2) whether he is a danger or menace to society. In the absence of a basis for such findings, a one-day-to-life sentence cannot stand ( People v. Bailey, supra; People ex rel. Chumley v. Mancusi, 26 A.D.2d 905; People v. Jackson, 20 A.D.2d 170, 174, 21 A.D.2d 843). The reports filed by the psychiatrists and testimony given at the hearing disclosed that defendant had received some five and one half hours of psychiatric help during the 11 years he has spent in prison; that there are no indications of mental illness in this man and that he would not benefit from an indeterminate prison sentence. With regard to the question of any further danger to society the court-appointed psychiatrists expressed opinions that "He probably would not be a menace to society" but they understandably could not predict definitely. They further stated that upon release he should be subjected to parole supervision or "be required to visit a psychiatrist frequently." Upon this record we conclude that defendant is not such a menace to society to warrant a sentence of one-day-to-life and, since he is not capable of being benefited by further confinement, should be released under the supervision of the Department of Parole ( People v. Kinney, 34 A.D.2d 728). We are empowered to modify the judgment pursuant to section 543 of the Code of Criminal Procedure and, since the crimes were committed prior to September 1, 1967, the punishment must comply with the provisions of the former Penal Law (Penal Law, § 5.05). Accordingly in the interests of justice we impose a sentence nunc pro tunc of 10 to 16 years on the count of sodomy first degree and suspend the sentences on sodomy, second degree and misdemeanor counts. Defendant, having already served his minimum sentence and over two thirds of his maximum sentence, ought to be released and placed under the supervision of the Department of Parole provided he has lived up to the requirements set forth by the institutional authorities (cf. Matter of Briguglio v. New York State Bd. of Parole, 24 N.Y.2d 21; People v. Kinney, supra).