Opinion
December 9, 1965
Appeal from the Ontario County Court.
Present — Williams, P.J., Bastow, Goldman, Del Vecchio and Marsh, JJ.
Judgment insofar as it imposes sentence upon defendant unanimously reversed, sentence vacated, and matter remitted to Ontario County Court for proceedings on resentence in accordance with the memorandum. Memorandum: The defendant was convicted of violation of subdivision 5 of section 242 of the Penal Law, assault second degree, and was sentenced March 20, 1964, to an indeterminate term of one day to life. While prior to sentence a psychiatric examination was ordered pursuant to section 2189-a of the Penal Law and the report of the examination submitted to the court before sentence, from a reading of the probation report and the psychiatric report itself it is clear that the court in imposing sentence did not give the findings stated therein, which stated only "the diagnostic impression of these examiners at this time is Without Mental Disorder; Alcoholism", the consideration required by section 2189-a of the Penal Law. ( People v. Smith, 22 A.D.2d 333.) Upon resentence, with the aid of an additional and current psychiatric report, the court may then pronounce sentence appropriate to the conditions and circumstances here prevailing. (See People v. Mosher, 23 A.D.2d 814. )