Kassal and Rubin, JJ., dissent in a memorandum by Rubin, J., as follows: On the afternoon of October 16, 1989, an undercover police officer purchased from defendant three glassine envelopes stamped "Get Paid”, a brand of heroin. Defendant was arrested soon afterward, and seven glassine envelopes in addition to $10 in prerecorded buy money were recovered from his person. On October 30, 1989, defendant made a similar sale of "Get Paid” to an undercover police officer and was once again arrested.
Defendant was indicted in connection with both sales and moved to dismiss the indictments in the interest of justice, asserting that he is infected with the HIV virus. Although no medical record has ever been supplied to establish that defendant is seriously disabled due to his condition, that he is suffering from active AIDS symptoms, or even that he is afflicted with AIDS-related syndrome, Supreme Court granted defendant’s motion, relying on its own observation of defendant’s "gradually * * * deteriorating] * * * physical condition.”
Matter of Weinstein v Haft (93 AD2d 786, affd 60 NY2d 625) demonstrates the reluctance of courts to impose incarceration where it might be precluded by a defendant’s health problems. In Weinstein, sentencing was postponed for a period of several years while petitioner underwent treatment. The Court of Appeals ruled that it was not an abuse of discretion to postpone disposition of the petitioner’s motion to dismiss in the interest of justice in order to obtain further medical evidence of her physical condition.
There is no dispute that AIDS is a serious condition which can serve as the basis for dismissal of criminal charges in the interest of justice. "The court’s discretion to dismiss, however, is not absolute and is to be exercised sparingly” (People v Walsh, 90 Misc 2d 291, 293). Dismissal of an indictment in the absence of some "compelling factor” (CPL 210.40 [1]) warrants reversal as an abuse of discretion (People v Field, 161 AD2d 660). Moreover, infection with the AIDS virus, without further compelling circumstances, is not generally regarded as a sufficient basis for relieving a defendant of a jail sentence (People v Howard, 164 AD2d 895, 896-897, lv denied 76 NY2d 940; People v Chrzanowski, 147 AD2d 652, 653, lv denied 74 NY2d 662; People v Brandow, 139 AD2d 819, lv denied 72 NY2d 856).
The issue on this appeal is not the propriety of dismissal of an indictment in the interest of justice where a defendant is *76suffering from serious complications resulting from HIV infection. The question is the proof, if any, which must be presented to support the grant of such relief. In marked contrast to Matter of Weinstein v Haft (supra), the record in this case is devoid of medical evidence to support the disposition. Supreme Court should not be permitted to substitute its own lay observations for those of trained medical professionals. At the very least, a report from a physician should be required to establish defendant’s infection with the HIV virus and the extent to which the condition has progressed.
Accordingly, the appeal should be held in abeyance and the matter remanded to Supreme Court for receipt of medical evidence to support dismissal of the indictment.