This is an appeal from a judgment convicting .defendant, on his guilty plea, of second degree assault with intent to commit rape, and imposing a second offender sentence of one day to life.
Defendant’s main contention is that the statutes providing for the one day to life sentence are invalid for failure to afford due process, like the Colorado and Pennsylvania statutes held invalid on that ground in Specht v. Patterson (386 U. S. 605) and United States ex rel. Gerchman v. Maroney (355 F. 2d 302). In my opinion, the New York statutes here involved (Penal Law, §§ 243 and 2189-a) are markedly different from the Colorado and Pennsylvania statutes considered in Specht and Maroney (supra), those cases are not here controlling, and the applicable holding is that in Williams v. New York (337 U. S. 241).
The Colorado and Pennsylvania statutes were held invalid for failure to afford notice and a judicial hearing because (a) they provided a specified penalty for a proved, specified sex crime in one statute, and then provided a mandatory, magnified sentence in a different statute “in lieu of the sentence now provided by law ’ ’, based upon a new and different fact finding provided for in that separate statute; and (b) in effect, they provided that the conviction for the specified sex offense was merely the basis for the institution of a new, independent, criminal proceeding under another act, based upon a new charge, resulting in a different fact finding, and punishable by a different sentence. On the other hand, each of the New York statutes providing the penalties for specified sex offenses contains within itself the alternative sentences of a fixed term or an indeterminate one day to life term; both of the alternative sentences are specifically provided for the enumerated crime; the alternative one day to life sentence is not provided for in a separate statute, is not imposed in an independent proceeding, is not based upon a separate, independent finding of a fact not in the crime itself, and is not imposed “in lieu, *128of the sentence now provided by law”. In New York, the sentencing court has complete discretion to impose either a fixed term or an indeterminate one day to life sentence after it receives the psychiatric report mandated bv section 2189-a (People v. Rhodes, 21 A D 2d 906, affd. 15 N Y 2d 729, cert, den. 382 U. S. 859); and if there were no section 2189-a the sentencing court would still have discretionary power, under section 482 of the Code of Criminal Procedure, to order a psychiatric report'and would then have discretionary power, regardless of the findings in that report, to impose either the fixed term or the alternative one day to life sentence' expressly provided for in the statute stating such alternative sentences for the specified sex crime. In short, in New York, the requirement of a presentence psychiatric report in sex crimes pursuant to section 2189-a does not result in the institution of an independent, criminal proceeding, based upon a new charge, and eventuating in a required different sentence bottomed upon a new fact finding separate from the previous finding of guilt; it is merely an amplification of the existing sentencing procedure, pursuant to section 482 of the Code of Criminal Procedure, which requires the sentencing court to obtain the defendant’s record, and all available probation reports, medical reports and other relevant information before exercising his discretion in the imposition of sentence (see, Public Papers of Governor Dewey, 1950, p. 16 et seq.)
Hence, the one day to life sentence imposed on this defendant, pursuant to sections 243 and 2189-a of the Penal Law does not violate due process and is valid despite the fact that defendant was not afforded a hearing at which he could controvert the section 2189-a psychiatric report (Williams v. New York, 337 U. S. 241, supra; see, also, People v. Peace, 18 N Y 2d 230).
I have examined defendant’s other contentions and find no merit in them.
The judgment should be affirmed.