
    The People of the State of New York, Respondent, v. Joseph P. Alvich, Jr., Appellant.
    Argued November 19, 1959;
    decided December 30, 1959.
    
      
      Harris B. Steinberg and J. Raymond McGovern for appellant.
    I. It was prejudicial error to set aside the original suspended sentence over defendant’s objection. (Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245; Matter of Rudd v. Hazard, 266 N. Y. 302; Matter of United Press Assns. v. Valente, 308 N. Y. 71.) II. Either branch of the statutory requirement for a psychiatric examination and report — that contained in section 2188 or that contained in section 2189-a — may be waived by the party sought to be protected thereby. (Leary v. United States, 268 F. 2d 623; People v. Spry, 5 A D 2d 835; People v. Doria, 280 App. Div. 1027; State v. Culver, 40 N. J. Super. 427; People v. Thompson, 251 N. Y. 428..) III. Both the prosecutor, on behalf of the public, and defendant, by his attorney, waived the respective protections afforded them by the statutes. (Patton v. United States, 281 U. S. 276; Adams v. United States ex rel. McCann, 317 U. S. 269; People ex rel. Sedotto v. Jackson, 307 N. Y. 291.) IV. Actually, there was substantial compliance with the purpose of sections 2188 and 2189-a, even though the forms were not precisely adhered to. V. The new sentence amounted to an illegal circumvention of defendant’s rights to a hearing and determination of the charge of violation of probation. (People v. Oskroba, 305 N. Y. 113; Escoe v. Zerbst, 295 U. S. 490; People ex rel. Benacquista v. Blanchard, 267 App. Div. 663; Matter of Juliane v. Chemung County Ct., 282 App. Div. 822; People v. Valle, 7 Misc 2d 125; People ex rel. Goldberg v. Sheriff of Suffolk County, 206 Misc. 820; People v. Eames, 204 Misc. 798; People ex rel. Stumpf v. Craig, 79 Misc. 98.) VI. Sentence cannot now be imposed on defendant, and his release is required. The judgment and sentence having been set aside, there remained no conviction on which a new sentence could be imposed. (People v. Farina, 2 A D 2d 776, 2 N Y 2d 454; People ex rel. Hunt v. McDonnell, 201 Misc. 406, 279 App. Div. 923.) VII.. Imposition of sentence now would involve double jeopardy. (People ex rel. Ostwald v. Craver, 272 App. Div. 181; People ex rel. Jimerson v. Freiberg, 137 Misc. 314.)
    
      John C. Marbach, Special District Attorney, for respondent.
    I. The order of the court vacating the original judgment and sentence was proper. II. Statutory sentencing provisions could not be waived by this defendant. (Johnson v. Zerbst, 304 U. S. 458; People v. Jelke, 308 N. Y. 56; Matter of United Press Assns. v. Valente, 308 N. Y. 71; Matter of Grae, 282 N. Y. 428; People v. La Barbera, 274 N. Y. 339; Davison v. Klaess, 280 N. Y. 252; People ex rel. Battista v. Christian, 249 N. Y. 314; Hibdon v. United States, 204 F. 2d 834; People ex rel. Rainone v. Murphy, 1 N Y 2d 367.) III. Neither party waived the provisions of the statute. (Bute v. Illinois, 333 U. S. 640; Carter v. Illinois, 329 U. S. 173; Alsens Amer. Portland Cement Works v. Degnon Contr. Co., 222 N. Y. 34; People v. La Barbera, 274 N. Y. 339.) IV. There was no substantial compliance with the requirements for formal psychiatric examination. (People v. Esposito, 287 N. Y. 389.) V. There was no avoidance of defendant’s claimed right to be heard on the charge of violation of probation. (People v. Eames, 204 Misc. 798.) VI. The judgment appealed from was properly made by the trial court. (People v. Cioffi, 1 N Y 2d 70; People v. Farina, 2 A D 2d 776, 2 N Y 2d 454; People ex rel. Sedotto v. Jackson, 307 N. Y. 291; Bozza v. United States, 330 U. S. 160; Ex Parte Karstendick, 93 U. S. 396.)
   Per Curiam.

The defendant Alvich, convicted on a plea of guilty, was given a suspended sentence, placed on ‘ ‘ Indefinite Probation ” and required to undergo psychiatric treatment. More than a year later, the court, upon motion of the prosecutor, vacated the judgment, on the ground that the requirements of section 2189-a of the Penal Law had not been met and thereafter, in place of the original judgment, rendered a new one ordering the defendant’s imprisonment for a term of from two to four years.

Section 2189-a, enacted in 1950 after long and serious consideration of the problem of sex offenders, embodies a considered legislative policy in regard to the procedure to be adopted in sentencing such persons (see Report on Study of 102 Sex Offenders at Sing Sing Prison, in Public Papers of Thomas E. Dewey, 1950, pp. 162-229), and there can be no doubt that, insofar as it prescribes a psychiatric examination and a written report thereof prior to the imposition of sentence, the section mandates the procedure to be followed. But that does not mean that every departure from its provisions will deprive a court of jurisdiction to impose sentence. In the case before us, while the court may not have followed the strict letter of the statute in all its details, there was substantial compliance with its essential requirements. In short, the court had jurisdiction to render the original judgment and impose a suspended sentence and, that being so, it necessarily follows that the court was without power thereafter to treat that judgment as void and provide for a new and different sentence.

In the view which we have thus taken, we do not reach, and find it unnecessary to treat, the question whether the requirements of section 2189-a may be waived by either the defense or the prosecution.

The judgment of the Appellate Division should be reversed and the original judgment suspending* the defendant’s sentence reinstated.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke concur.

Judgment reversed, etc.  