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PEOPLE STATE NEW YORK v. MICHAEL KOBERLEIN (12/16/69)

NEW YORK SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT


December 16, 1969

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MICHAEL KOBERLEIN, APPELLANT

Appeal from a judgment of the District Court of Nassau County (Francis J. Donovan, J.) rendered February 26, 1969, which, upon a verdict convicting defendant of the crime of possession of a dangerous drug (Penal Law, ยง 220.05), and upon defendant's admission of narcotic addiction, sentenced and certified him to the care and custody of the Narcotic Addiction Control Commission.

Concur -- Hogan, P. J., Glickman and Pittoni, JJ.

Author: Per Curiam

 In our opinion, according to subdivision 1 of section 208 of the Mental Hygiene Law, as amended by section 1 of chapter 809 of the Laws of 1969, effective May 22, 1969, the court below should have advised defendant at the time of sentencing of his right to a jury or non-jury hearing on the addiction hearing, before requiring him to admit, deny or stand mute as to whether he is an addict.

The judgment of conviction should be unanimously modified on the law, to the extent of vacating the sentence imposed, and matter remitted to the District Court of Nassau County for resentencing, and, as so modified, affirmed.

Judgment modified, etc.

Disposition

Judgment modified, etc.

19691216

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