People v. Holt , 345 N.Y.S.2d 675 ( 1973 )

Appeals by defendant from (1) a judgment of the County Court, Orange County, rendered September 1, 1971, convicting him of criminal possession of a dangerous drug in the fifth degree, upon a plea of guilty, and sentencing him to an indeterminate prison term not to exceed four years, and (2) an order of the same court, dated February 26, 1973, denying his motion to set aside said judgment, for leave to withdraw the guilty plea, to dismiss the indictment and for a new trial on the ground of newly discovered evidence. Mr. Justice Munder grants defendant leave for the appeal he has taken from the order (CPL 450.15, 460.15). Order affirmed. No opinion. Judgment reversed, on the law, and case remanded to the County Court for resentencing. At the time defendant was sentenced, the Narcotic Addiction Control Commission was not accepting any criminal addicts for treatment. The record is' not clear whether, in view of this fact, the sentencing court considered the alternate sentencing provisions available under the Penal Law (People v. Bennet, 39 A D 2d 320). In remanding the case we are in no way indicating what sentence should be imposed (see People v. Laing, 40 A D 2d 709). This case is distinguishable from People v. Carter (31 N Y 2d 964), because, although the record in this case demonstrates that defendant was addicted, it does not make clear whether the court considered his request for treatment or the possibility of a conditional or unconditional discharge. Hopkins, Acting P. J., Munder, Shapiro, Gulotta and Christ, JJ., concur.