Opinion
July 10, 1967
Order of the Supreme Court, Queens County, dated November 10, 1966, affirmed. No opinion. Order of said court, dated October 28, 1966, and made on reargument, modified on the law by (1) striking out the provision which adheres to the original decision and order of October 18, 1966, denying defendant's motion for resentence, and (2) substituting therefor a provision granting the motion for resentence. As so modified, order affirmed and action remanded to the Criminal Term for further proceedings consistent herewith. Appeal from order of said court, dated October 18, 1966, dismissed. That order was superseded by the order of October 28, 1966 granting reargument. The motion which resulted in the order, dated October 28, 1966, was with respect to a 1957 sentence of one day to life, upon a conviction for rape in the first degree. The prime issue is the sufficiency of the psychiatric examination and the report thereon which were made in purported compliance with section 2189-a of the Penal Law. Because such sentence is part of a progressive method of treating sex offenders, such psychiatric report, to be sufficient, should discuss and analyze the defendant's sexual problem and whether such condition was of a type which would yield to treatment. The report is inadequate if it does not state the risk to society involved in the defendant's immediate release, with or without treatment, and defendant's potential for responding to treatment, presently or otherwise; and the sentencing court should be reasonably certain that appropriate treatment will be given to the defendant ( People v. Jackson, 20 A.D.2d 170). In the instant case the report in substance merely advised the sentencing court in 1957 that defendant "becomes impulsive and aggressive when under the influence of alcohol", "is capable of understanding the charge against him * * * and of making his defense," and, if convicted, should be committed to a correctional institution and will need "strict supervision after return to community life". It did not contain anything as to whether the defendant has a sex problem. The requisite report is an essential to a valid sentence of the type here in question. Under the circumstances, the 1957 sentence was invalid. A proper examination and report should be made before defendant is resentenced. A motion for resentence is, as a rule, not appealable ( People v. Holmes, 27 A.D.2d 843; People v. Brown, 26 A.D.2d 779). However, the discretion of the sentencing court is not here in issue. Rather, it is demonstrated that the court, in the absence of a proper psychiatric report, was without power to impose the one day to life sentence. Thus we have followed the reasoning of People v. Machado ( 17 N.Y.2d 440) and treated the motion for resentence as being in the nature of coram nobis and have decided this appeal on its merits. Ughetta, Acting P.J., Christ, Brennan, Benjamin and Munder, JJ., concur.