The People of the State of New York, Respondent, v. Robert Esperto, Appellant

The People of the State of New York, Respondent, v. Robert Esperto, Appellant. [MAJORITY] Appeal by defendant, as limited by his brief, from a sentence of the County Court, Nassau County, imposed November 30, 1971, committing him to an indeterminate prison term of a maximum of three years, upon a conviction of attempted sale of a dangerous drug in the second degree, on his guilty plea. Sentence reversed, on the law, and case remanded to the County Court for resentence in accordance with the views herein set forth. The record indicates that defendant was a drug addict entitled to examination and sentencing pursuant to sections 207 and 208 of the Mental Hygiene Law. The County Court recognized his addiction, but did not give him the benefit of the treatment accorded by those provisions of the law because the Narcotic Addiction Control Commission had refused to accept any addicts at the time. For the reasons stated in People v. Bennet (39 A D 2d 320), defendant is entitled to be considered eligible for all the alternatives provided by statute for sen-tenting. Latham, Acting P. J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.