People v. Adams

252 A.D.2d 991, 675 N.Y.S.2d 924, 1998 N.Y. App. Div. LEXIS 8548

Opinion

—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant contends that County Court abused its discretion by failing to consider the underlying circumstances in finding that he violated the terms of his probation, revoking his probation and sentencing him to the maximum term of incarceration (see generally, People v McCloud, 205 AD2d 1024, 1025, Iv denied 86 NY2d 738). Although defendant acknowledged that he violated one of the terms of his probation by having unsupervised contact with his two young grandchildren, the record supports his explanation that it was an emergency situation and that he picked up the children from their bus stop after school at the request of his wife and stepson, the children’s father. In view of the fact that defendant had successfully completed 19 months of probation and had fully cooperated with his probation officer, we modify the judgment as a matter of discretion in the interest of justice by reducing defendant’s sentence of incarceration to time served and restoring defendant to probation. (Appeal from Judgment of Erie County Court, DiTullio, J. — Violation of Probation.) Present — Lawton, J. P., Wisner, Callahan, Boehm and Fallon, JJ.