Opinion
May 20, 1971
Appeal from the Erie County Court.
Present — Del Vecchio, J.P., Witmer, Gabrielli, Moule and Henry, JJ.
Judgment insofar as it imposes sentence upon defendant unanimously reversed, sentence vacated and matter remitted to Erie County Court for proceedings on resentence in accordance with the following memorandum: Defendant was sentenced to the custody of the New York State Department of Correction for indeterminate terms of four years upon his plea of guilty of attempted criminal possession of a forged instrument and seven years upon a verdict of guilty of burglary third degree. Upon this appeal he requests that he be ordered to be examined and resentenced, contending that the provisions of sections 207 and 208 of the Mental Hygiene Law were not complied with. On April 6, 1970, before the sentences were pronounced, counsel for defendant asked for an adjournment "so we could have him examined by the Narcotics Bureau". It appears from the record that the Judge had a report indicating that defendant had been using narcotics for some time. Nevertheless, defendant was sentenced without undergoing a medical examination to determine whether he is a narcotics addict. Upon the record an examination and a finding concerning defendant's status as an addict are required. He should therefore be resentenced in accordance with the procedures mandated by sections 207 and 208 of the Mental Hygiene Law. ( People v. Rosser, 36 A.D.2d 35; People v. Odom, 32 A.D.2d 651. )