People v. Passanante , 350 N.Y.S.2d 722 ( 1973 )

Appeal by defendant (by permission) from two orders of the 'Supreme Court, Queens County, dated October 21, 1971 and May 18, 1972, respectively, each of which denied a separate application in coram nobis to vacate a judgment of conviction rendered by said court on May 14, 1971. Orders reversed, coram nobis applications granted to the extent that the sentence imposed on May 14, 1971 is vacated, and the case is remanded to the Criminal Term for resentence. It is undisputed that at the time of the sentence defendant was a narcotic addict; that the Narcotic Addiction Control Commission was not then accepting criminal defendants (former Mental Hygiene Law, § 208); and that the sentencing court wanted to commit defendant to the commission’s program. Under these circumstances, it seems uncontestable that if the commission facilities had been available at the time of sentence defendant -would have been certified thereto. Accordingly, defendant should be resentenced (People v. Goldenberg, 40 A D 2d 613). Latham, Acting P. J., Shapiro, Grulotta, Christ and Benjamin, JJ., concur.