People ex rel. Mariello v. Montanye

Judgment unanimously affirmed. Memorandum: In 1971 petitioner was sentenced to a seven-year term of imprison [1093] ment by the Tompkins County Court following his conviction on a charge of criminally selling a dangerous drug in the fourth degree. In 1973 he petitioned the Wyoming County Court for a writ of habeas corpus, contending that his sentence was improper because he was not first given a drug addiction examination pursuant to the provisions of former section 207 of the Mental Hygiene Law. His petition was dismissed on the ground that former section 207 only requires an addiction examination if the defendant states or indicates that he is an addict or if symptoms or other appearances of addiction are present. We agree with this interpretation (see Matter of Torres v Gallucci, 36 AD2d 966; People v Olson, 36 AD2d 749; People v Rivera, 73 Misc 2d 558; People v Maguire, 63 Misc 2d 711) and note that no claim of addiction was made at the time of sentencing. Even if it were, however, strict and literal compliance with former section 207 is unnecessary and an examination may be waived by the court upon determining that regardless of defendant’s addiction, a sentence of imprisonment is warranted (People v Carter, 31 NY2d 964). (Appeal from judgment of Wyoming County Court—habeas corpus.) Present—Moule, J. P., Cardamone, Simons, Mahoney and Dillon, JJ.