People State New York v. Thomas Savino

[40 A.D.2d 562 Page 562] Judgment reversed as to the sentence, on the law and in interests of justice (CPL 470.15, subd. 2, par. [d], and case remitted
to the Criminal Term for resentence in accordance with the views herein set forth. Appellant was examined by the Narcotics
Addiction Control Commission and found to be an addict. His co-defendant's probation report (which includes references to
appellant) states that the finding as to appellant followed a February 1, 1971 NACC examination. Appellant came up for sentencing
on October 26, 1971. The record indicates that the Criminal Term, defense counsel and the district attorney believed that
NACC commitment was the proper sentence if the program were available. It is also apparent that all parties understandably
were under the impression that the NACC alternative was not available to appellant because NACC had ceased taking addicted
convicted adult felony defendants. The non-availability of NACC to appellant is not established in this record, other than
by colloquy. The NACC examination [40 A.D.2d 562 Page 563]