Opinion
July 13, 1972
Appeal by defendant from judgment of the Supreme Court, Kings County, rendered May 18, 1971, convicting him of possession of a dangerous drug in the fifth degree, upon a plea of guilty, and sentencing him to a prison term of a maximum of three years, to run concurrently with unexpired parole time. Judgment reversed as to the sentence, on the law, and case remanded to the Criminal Term for resentence in accordance with the views herein set forth. The record indicates that defendant was a drug addict entitled to examination and sentencing pursuant to sections 207 and 208 of the Mental Hygiene Law. The Criminal Term recognized his addiction, but did not give defendant the benefit of the treatment accorded by those provisions of the law, because the Narcotic Addiction Control Commission had refused to accept any addicts at the time, for lack of funds and facilities. For the reasons stated in People v. Bennet ( 39 A.D.2d 320), defendant is entitled to be considered eligible for all the alternatives provided by statute for sentencing. Hopkins, Acting P.J., Martuscello, Gulotta, Brennan and Benjamin, JJ., concur.