
    The People of the State of New York, Respondent, v. Richard J. Jennings, Appellant.
    Supreme Court, Appellate Term, Second Department,
    April 17, 1973.
    
      
      James J. McDonough (Matthew MurasJcin and Robert A. Rose-man of counsel), for appellant. William Gahn, District Attorney (.Herbert Esrick of counsel), for respondent.
   Memorandum. Order unanimously reversed on the law, motion granted, judgment vacated, and matter remanded to the court below for resentencing pursuant to the provisions of the Mental Hygiene Law.

Defendant, an admitted addict, pled guilty to criminal trespass, second degree, a misdemeanor, and was sentenced to a one-year jail term. The only permissible sentence, in the absence of a refusal by the Narcotic Addiction Control Commission to consent to certification (Mental Hygiene Law, § 210-a), was certification to the care and custody of such commission (Mental Hygiene Law, former § 208, subd. 4, par. a, and subd. 5). The court below, however, felt that inasmuch as defendant had been detoxified during a term of imprisonment he was then serving, a sentence to the commission would be tantamount to a discharge. While we can understand the sentencing court’s view that the statute should not be used to permit a criminal to maneuver his way out of paying his debt to society, nevertheless, any change in the statute must come from the Legislature, and we are constrained to remand the matter for resentencing.

Concur — Glickman, P. J., Pittoni and McCullough, JJ.  