People v. Giorandino — 62 Misc. 2d 926

Majority

p. 926

The People of the State of New York, Respondent, v. Paul Giorandino, Appellant.

Supreme Court, Appellate Term, Second Department,

March 13, 1970.

p. 927

James J. McDonough and Matthew Muraskin for appellant. William Cahn, District Attorney (R. G. Lavallee of counsel), for respondent.

Defendant’s alleged use of cocaine does not warrant a finding that he is a “ narcotic addict ”, as defined in subdivision 2 of section 201 of the Mental Hygiene Law. This statute concerns itself with persons who are dependent or in imminent danger of becoming dependent upon 1 ‘ opium, heroin, morphine or any derivative or synthetic drug of that group ”. With commendable candor, the District Attorney and the Trial Judge concede that cocaine is not a narcotic drug within any of these categories and that the certification of the defendant was improper under the circumstances.

The judgment of conviction should be unanimously modified on the law and facts by vacating certification of defendant to the Narcotic Addiction Control Commission and case remanded to the District Court, Nassau County, for resentencing; as so modified, judgment of conviction affirmed.

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

Judgment modified, etc.