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Defendant Moves to Have Sentence Set Aside


The defendant moves pursuant to Section 440.20 of the Criminal Procedure Law to set aside the sentence imposed upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law.

A New York Drug Possession Lawyer said the sole issue raised by the defendant is whether he could properly be sentenced under the Penal Law without first having been examined pursuant to Section 81.19 of the Mental Hygiene Law (formerly Section 207) where he was charged with a violation of Article 220 of the Penal Law.

Section 81.19(a) states:

‘Every person charged with a violation of section seventeen hundred forty-[73 Misc.2d 559] seven-e, section seventeen hundred fifty-one or section seventeen hundred fifty-one-a of the Former penal Law as in force and effect immediately prior to September first, nineteen hundred and sixty-seven, which was committed after April first, nineteen hundred sixty-seven, And every person charged with a violation of any offense defined in article two hundred twenty of the penal law, and every person charged with any felony or misdemeanor or the offense of prostitution, which was committed after October first, nineteen hundred sixty-seven, who, while in custody or when he appears before the court, shall state, indicate or show symptoms, or it otherwise appears, that he is a narcotic addict, shall undergo a medical examination to determine whether he is a narcotic addict. . . .’ (See, Laws of New York, 190th Session, p. 1561, ยง 95 for emphasis)

The Court found that at time of sentence the defendant was ably represented by private counsel. The Court had a full and complete presentence report before it as well. A New York Drug Crime Lawyer said the defendant at no time admitted that he was an addict nor did he exhibit any signs of addiction.

With reference to the presentence report, the Court noted that the defendant was extensively interviewed by a senior member of the Office of Probation. The probation officer questioned the defendant as to the drug crime. The defendant stated that while on occasion ‘he sniffed heroin and cocaine, he did not consider himself an addict’. In addition, the Court had before it a ‘CR–1N’ (form indicating that narcotic addiction was not suspencted) signed by the arresting officer.

The defendant in his motion papers rests his prayer for relief solely upon the fact that he was charged with a violation of article 220. He still does not admit addiction. The defendant was originally charged with possession of a felony weight of heroin and with possession of paraphernalia commonly used in the cutting and distribution of dangerous drugs. A plea of guilty to a charge of violating section 220.05 of the Penal Law [73 Misc.2d 563] (misdemeanor possession) was accepted to cover the underlying charges. The assistant district attorney recommended incarceration for one year and the case was adjourned for investigation and sentence.

In view of the legislative history of the section (207), it is clear that the legislature did not intend that all article 220 offenders submit to narcotic examinations irrespective of the presence of signs of addiction. Further, a Nassau County Sex Crimes Lawyer said that all the arguments and counterarguments raised, however logical they may be, were not within the contemplation of the legislature when the section was enacted.

The Court sentenced the defendant to incarceration for a period of nine months.

The defendant cites numerous cases (People v. Di Vito, 39 A.D.2d 968, 333 N.Y.S.2d 570; People v. Bennett, 39 A.D.2d 320, 334 N.Y.S.2d 350 (2nd Dept. 1972); People v. Fobbs, 40 A.D.2d 551, 334 N.Y.S.2d 260; People v. Blackman, 40 A.D.2d 552, 334 N.Y.S.2d 450 (2nd Dept. July 17, 1972); People v. Sczerbaty, 37 A.D.2d 428, 326 N.Y.S.2d 267, and People v. Horton, A.D.2d (N.Y.Law Journal 12/27/72)) for the proposition that if a defendant is found to be a narcotic addict as a result of an examination that the court is obliged to sentence such defendant to the care and custody of the Narcotic Addiction Control Commission. A Queens Sex Crimes Lawyer said that even if this were true, and the law (See, section 208) by no means makes the examination results conclusive evidence of addiction, it would not avail this defendant. All the cases cited are distinguishable from the instant case in that the cited cases involve circumstances where the defendant either admitted or showed signs of addiction.

The defendant’s motion to set aside his sentence and to be resentenced after an examination for narcotic addiction was denied.

Stephen Bilkis and Associates with its experienced New York Drug Crime Lawyers can fully sustain your rights mandated by statutes. It has offices located within New York Metropolitan area.

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