31 A.D.2d 538 | N.Y. App. Div. | 1968
In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, dated August 24, 1967, which dismissed the writ. Judgment reversed, on the law, without costs; relator’s sentence in the County Court, Dutchess County, rendered March 17, 1959, vacated; and relator remanded to said County Court for resentence in accordance with section 2189-a of the former Penal Law. The findings of fact below have not been considered. In 1959 relator was sentenced, for rape in the first degree, to an indeterminate term having a minimum of one day and a maximum of his natural life, pursuant to section 2189-a of the former Penal Law. The psychiatric report then before the sentencing court did not comply with that section, for the report did not discuss and analyze relator’s sexual problem. Indeed, the report did not state whether relator then had a sex problem (People v. Bailey, 21 N Y 2d 588; People v. Kearse, 28 A D 2d 910). Hence, f ollowing an examination and the preparation of a report of the kind described in Bailey (supra), relator should be resentenced. Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.
