Opinion
November 30, 1967
Appeal from the Ontario County Court.
Present — Williams, P.J., Bastow, Goldman, Henry and Marsh, JJ.
Judgment insofar as it imposed resentence unanimously vacated and matter remitted to Ontario County Court for further proceedings in accordance with the following Memorandum: In 1952 appellant was sentenced to a prison term of one day to life upon his plea of guilty to an indictment charging violation of section 483-a of the Penal Law. In 1966 following a habeas corpus proceeding he was returned to Ontario County Court for resentence. Following vacatur of the sentence the court directed a psychiatric examination (Penal Law, § 2189-a). The report of the mental examiners subsequently submitted to the court was patently insufficient and defective as it expressed the opinion that "defendant is capable of understanding the previous charges and should be returned to the court." The sentencing Judge recognizing the inadequacy of the report wrote to the Director of the State Hospital requesting information as to whether defendant presented a behavior problem which would render his release dangerous and, if so, whether his behavior pattern could be favorably affected by custodial medical treatment. (Cf. People v. Jackson, 20 A.D.2d 170, 174.) The Director instead of referring the inquiry to the examining doctors who had been designated by him (cf. Code Crim. Pro., §§ 659-661) undertook to reply to the inquiry although it does not appear that he had ever seen or examined appellant. In an ambiguous reply the Director failed to answer the questions and suggested that a better evaluation could be made by the psychiatrist in the prison where appellant had been confined. Frustrated in its attempt to obtain a proper report the court requested a "parole report" and in imposing a sentence of one day to life relied on the contents thereof. This report is not before us and apparently was returned to the prison with the remainder of its file. We conclude that there has been a complete failure to comply with section 2189-a of the Penal Law as interpreted by pertinent decisions. A new and current psychiatric examination should be had and a proper report submitted after which appellant should be resentenced.