People v. Drayton , 24 A.D.2d 751 ( 1965 )

Judgment convicting defendant of two misdemeanor counts in violation of section 1747-e of the Penal Law in the obtaining of barbituate drugs by fraud or deceit, insofar as such judgment sentences the defendant on each count to the New York City Penitentiary to a term of one year, unanimously reversed, on the law and on the facts, to the extent of setting aside the sentence and remanding the ease to the Supreme Court, Bronx County, for resentencing; and otherwise the conviction is affirmed. The defendant, following his plea of guilty to the misdemeanor counts, was arraigned as and adjudicated to be a multiple narcotics offender. Coneededly, he had a prior narcotics conviction, but he contends that section 1751-a of the Penal Law, providing for multiple offender treatment for “narcotic” drug violators was not applicable to his present “ barbituate ” convictions. Said section 1751-a is limited in its application to a conviction for “ a crime under section seventeen forty-seven-d, seventeen hundred fifty-one or seventeen hundred fifty-one-a of this chapter [Penal Law] or under any other law relating to narcotic drugs There is no express reference in said section 1751-a to a conviction of a crime under section 1747-e (to which defendant pleaded guilty) and we conclude that such a conviction is not to be deemed a conviction under a “ law relating to narcotic drugs” as referred to in said section 1751-a. While the sentences imposed were within valid limits irrespective of application of section 1751-a, it is apparent that the court may have been improperly influenced by its erroneous adjudication of the defendant as a multiple narcotic offender; and, in any event, the defendant contends that the sentences were excessive. There was, however, no presentence investigation conducted by the Probation Department; and, upon the record and without the benefit of such investigation and a proper report, this is not a proper ease for this court to fix or reduce the sentences. Concur — Babin, J. P., Valente, Stevens, Eager and Steuer, JJ.