People v. Rivera

¶1Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 8, 1968, convicting him of violation of the Public Health Law with respect to narcotics (three counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and case remanded for resentence of defendant in accordance with the applicable provisions of the Mental Hygiene Law. The findings of fact below are affirmed. The provisions of section 208 of the Mental Hygiene Law are mandatory in the instances specified therein (cf. People v. Odom, 32 A D 2d 651). The record before us raises serious doubt as to whether defendant, who had been certified as a narcotic addict, was sentenced pursuant to section 208. His certification as an addict was not included among the papers on file in the office of the clerk of the trial court; and, although he admitted being an addict, the finding to that effect which was required by section 208 was not made by the sentencing court. Moreover, the record contains no indication that the court was even aware of the certification. In these circumstances the presumption of regularity does not prevail. Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.