Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Taylor, JJ.
Appeal by defendant from an order of the County Court of Saratoga County denying, without a hearing an application in the nature of a writ of error coram nobis to set aside a judgment of conviction. On February 11, 1957 appellant entered a plea of guilty to the first count of an indictment which accused him of the crime of sodomy in the first degree and was sentenced to imprisonment for a period of not less than 5 nor more than 10 years. By order dated January 3, 1961 his subsequent petition for a writ of habeas corpus was sustained, in part, by the County Court of Clinton County on the ground that he was not sentenced in conformity with the provisions of section 2189-a of the Penal Law in that the required psychiatric examination of him had not been made and the prescribed written report thereof submitted to the court prior to the imposition of sentence. His remand to the sentencing court followed. On February 1, 1961 appellant was committed by that court to the Utica State Hospital for psychiatric examination. Upon the completion thereof by two psychiatrists, whose report the court has received, he was resentenced on February 7, 1961 to the same term of imprisonment and credited with the time already served. The failure to follow the mandated procedure of the statute deprived the sentencing court of jurisdiction to impose the original sentence. ( People ex rel. Lawson v. Denno, 9 N.Y.2d 181; People v. Spry, 5 A.D.2d 835.) Its power to correct the erroneous sentence and to impose an appropriate one is clear. ( People ex rel. Miresi v. Murphy, 253 App. Div. 441, 444; People ex rel. La Mere v. Jackson, 9 A.D.2d 843; cf. People v. Alvich, 7 N.Y.2d 125.) Appellant does not claim that at the time of his plea of guilty or that on the date of his resentence he was insane, incapable of understanding the charges against him or of making his defense. There is no merit in his contention to the effect that the psychiatric examination was incompetently or inadequately conducted. Nor is there any showing that the prosecutor or the court coercively induced him to enter the plea of guilty by which he extinguished 11 additional counts charging him with the same or related sex offenses allegedly perpetrated on a nine-year-old girl. Order unanimously affirmed, without costs.