Opinion
September 25, 1972
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 14, 1971, convicting him of robbery in the first degree, upon a plea of guilty, and sentencing him to a term of imprisonment. Judgment reversed as to the sentence, on the law, and the case remanded to the Criminal Term for resentencing. It is indisputably apparent that on the date of defendant's sentence he was a narcotic addict and the Narcotic Addiction Control Commission was not accepting criminal defendants under section 208 of the Mental Hygiene Law. It further appears that the probation report in this case was generally sympathetic to defendant's contention that he was an addict who genuinely sought rehabilitation and who had made some progress toward that goal. Under the foregoing circumstances, it seems likely that if the Narcotic Addiction Control Commission facilities were available on the date of sentence defendant would have been committed thereto. Accordingly, this court is of the opinion that defendant should be resentenced. Latham, Acting P.J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.