New York Criminal Lawyer Blog
A Suffolk Criminal Lawyer said that, 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. This is a case of ‘second impression’–the first time this precise issue has been raised in the First Judicial Department.
The issue in this case 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 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. This section of the Mental Hygiene Law was originally enacted in April, 1966, as part of a comprehensive plan to provide care, treatment and rehabilitation of drug addicts.
Shortly thereafter, on May 10, 1966, a statement by Governor Rockefeller was presented by the then Chairman of the Narcotic Addiction Control Commission to the U.S. Senate Committee on the Judiciary, Subcommittee on Criminal Laws and Procedures. The Governor indicated that the legislation was designed so that, ‘Every defendant arrested for a crime or the offense of prostitution, and Believed to be a narcotic addict, would be given a medical examination as soon as possible to determine whether such a person is an addict.’ The Governor further stated: ‘These provisions become effective April 1, 1967, for defendants arrested for violations of the narcotic laws, and October 1, 1967, for defendants arrest for other felonies or misdemeanors or for the offense of prostitution.’ The reason for listing narcotic offenses separately was apparently due to the different dates on which these laws were to take effect.
After the effective date of the act, the, dealt with the question of whether or not a person accused of violating Article 220 of the Penal Law had to be examined even though he did not ‘state, indicate or show symptoms, or it otherwise appears’ that he was a narcotic addict. In that dase, the learned judge answered the question in the affirmative. The court argued that since violations of Article 220 of the Penal Law were either felonies or misdemeanors, the amendment of Section 207 of the Mental Hygiene Law would have been unnecessary if the presence of symptoms were required. The court in Purves did not consider in its opinion the effective date of the amendment and the effective date of the new Penal Law, both of which went into effect on September 1, 1967.
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