Opinion
April 8, 1965
Appeal from the Oneida County Court.
Present — Williams, P.J., Bastow, Goldman, Noonan and Del Vecchio, JJ.
Judgment insofar as it imposes sentence upon defendant, unanimously reversed, sentence vacated, and matter remitted to Oneida County Court for proceedings on resentence in accordance with the memorandum. Memorandum: The defendant was convicted of violation of section 690 of the Penal Law, sodomy, first degree. He was sentenced to an indeterminate term of one day to life, under section 2189-a of the Penal Law. Ordinarily the choice as to probation, a definite sentence, or the alternative treatment, pursuant to section 2189-a would be a matter for the sound discretion of the sentencing Judge. ( People v. Rhodes, 15 N.Y.2d 729.) However, in the present case, considering the probation report, the medical reports, and the various other matters that were before the sentencing Judge, it appears that the sentence of one day to life was not appropriate. Upon a resentence with the aid of an additional and current psychiatric report, a sentence appropriate to the conditions then prevailing may be pronounced.