People v. Koberlein — 61 Misc. 2d 1018

Majority

p. 1018

The People of the State of New York, Respondent, v. Michael Koberlein, Appellant.

Supreme Court, Appellate Term, Second Department,

December 16, 1969.

p. 1019

James J. McDonough, Susan E. Crandall and Matthew Muras-Tcin for appellant. William Cahn, District Attorney (Gino Papa of counsel), for respondent.

In our opinion, according to subdivision 1 of section 208 of the Mental Hygiene Law, as amended by section 1 of chapter 809 of the Laws of 1969, effective May 22, 1969, the court below should have advised defendant at the time of sentencing of his right to a jury or nonjury hearing on the addiction hearing, before requiring him to admit, deny or stand mute as to whether he is an addict.

The judgment of conviction should be unanimously modified on the law, to the extent of vacating the sentence imposed, and matter remitted to the District Court of Nassau County for resentencing, and, as so modified, affirmed.

Concur — Hogan, P. J., Glickman and Pittoni, JJ.

Judgment modified, etc.