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: In 1959 defendant, then 19 years of age, was convicted on his plea of guilty in Wayne County Court of carnal abuse of a child under ten years of age (Penal Law, § 483-a) and sentenced to an indeterminate term of one-day-to-life. In 1968, following a habeas corpus proceeding, he was returned to Wayne County Court for resentence. After vacatur of the sentence the court directed a psychiatric examination. (Penal Law § 2189-a.) Following the examination and submission of the report a hearing was held as mandated by People v. Bailey ( 21 N.Y.2d 588). On March 6, 1969 defendant was resentenced to an indeterminate term of one-day-to-life. In People v. Bailey ( supra, pp. 593-594) the court said: "A literal reading of the New York statutory scheme might lend support to the argument advanced by the People and accepted by the Appellate Division that the sentencing court has `complete discretion' to sentence for one-day-to-life. An examination of the statutory purpose as well as the weight of judicial authority indicate that the discretion of the sentencing Judge to mete out a one-day-to-life sentence is limited to those cases in which the record indicates some basis for a finding that the defendant is a danger to society or is capable of being benefited by the confinement envisaged under the statutory scheme. Absent such a basis, the sentence cannot stand ( People v. Jackson, 20 A.D.2d 170, 174, 21 A.D.2d 843 [3d Dept., 1964]; People ex rel. Piatt v. La Vallee, 26 A.D.2d 904 [4th Dept., 1966]; People ex rel. Chumley v. Mancusi, 26 A.D.2d 905 [4th Dept., 1966])." The testimony adduced at the hearing and the contents of the psychiatrists' reports reveal that defendant would not benefit from a sentence of one-day-to-life, that he is not a danger to society and that his sexual problems are not a type which would yield to psychiatric treatment. In the light of this proof we conclude that the reimposition of a one-day-to-life sentence was an improvident exercise of discretion. We also recognize that the Legislature did not see fit to re-enact section 2189-a as part of the revised Penal Law and that the offense of which defendant was convicted in 1959 (Penal Law, § 483-a) is now classified as sexual abuse in the first degree, a class D felony. (Penal Law, § 130.65.) A sentence for a class D felony shall not exceed seven years (§ 70.00, subd. 2, par. [d]). Upon the record, in the interests of justice and under the authority vested in this court by section 543 of the Code of Criminal Procedure we modify the sentence imposed on March 6, 1969 by reducing it to time already served. ( People v. Zuckerman, 5 N.Y.2d 401, 8 A.D.2d 732.)