280 A.D. 1027 | N.Y. App. Div. | 1952
Appeal by defendant from a judgment of conviction rendered against him on a jury verdict after trial in the County Court of Franklin County convicting him of the crime of rape in the first degree. The record on appeal fails to disclose whether a psychiatric examination of the defendant had been made and a report thereof submitted to the court prior to the imposition of sentence in accordance with section 2189-a of the Penal Law. (L. 1950, eh. 525, § 23; see, also, § 18.) The legality and propriety of the sentence is a matter subject to review upon this appeal. If a psychiatric examination was made and reported in accordance with the aforesaid statutory provisions the record on appeal should be amended by incorporating the same therein, and in default thereof, or if no such examination and report was had and submitted prior to the imposition of sentence, a reargument should be directed as to the legality of the sentence which was imposed. In default of an amendment of the record on appeal by incorporating therein a psychiatric examination of the defendant and the submission of the report thereof, made and submitted in accordance with the provisions of section 2189-a of the Penal Law, the court of its own motion directs a reargument of the appeal as respects the legality of the sentence at its January, 1953, Term. Foster, P. J., Brewster, Bergan and Coon, JJ., concur; Heffernan, J., taking no part.