Opinion
Argued November 19, 1959
Decided December 30, 1959
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, HUGH S. COYLE, J.
Harris B. Steinberg and J. Raymond McGovern for appellant. John C. Marbach, Special District Attorney, for respondent.
The defendant Alvich, convicted on a plea of guilty, was given a suspended sentence, placed on "Indefinite Probation" and required to undergo psychiatric treatment. More than a year later, the court, upon motion of the prosecutor, vacated the judgment, on the ground that the requirements of section 2189-a of the Penal Law had not been met and thereafter, in place of the original judgment, rendered a new one ordering the defendant's imprisonment for a term of from two to four years.
Section 2189-a, enacted in 1950 after long and serious consideration of the problem of sex offenders, embodies a considered legislative policy in regard to the procedure to be adopted in sentencing such persons (see Report on Study of 102 Sex Offenders at Sing Sing Prison, in Public Papers of Thomas E. Dewey, 1950, pp. 162-229), and there can be no doubt that, insofar as it prescribes a psychiatric examination and a written report thereof prior to the imposition of sentence, the section mandates the procedure to be followed. But that does not mean that every departure from its provisions will deprive a court of jurisdiction to impose sentence. In the case before us, while the court may not have followed the strict letter of the statute in all its details, there was substantial compliance with its essential requirements. In short, the court had jurisdiction to render the original judgment and impose a suspended sentence and, that being so, it necessarily follows that the court was without power thereafter to treat that judgment as void and provide for a new and different sentence.
In the view which we have thus taken, we do not reach, and find it unnecessary to treat, the question whether the requirements of section 2189-a may be waived by either the defense or the prosecution.
The judgment of the Appellate Division should be reversed and the original judgment suspending the defendant's sentence reinstated.
Chief Judge CONWAY and Judges DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE concur.
Judgment reversed, etc.