People v. Rodriguez

46 A.D.2d 863, 361 N.Y.S.2d 670, 1974 N.Y. App. Div. LEXIS 3458

Opinion

Judgment, Supreme Court, New York County, rendered July 2, 1974, unanimously modified, in the exercise of discretion and the interest of justice, to vacate the sentence of one year and to remand to the sentencing Justice to- impose a sentence of intermittent imprisonment pursuant to section 85.00 of the Penal Law, and otherwise affirmed. In our view, considering all the circumstances of this case, as well as the probation report, confinement for the term imposed is inappropriate. On the other hand, probation is not called for as it would confer no particular benefit upon society: defendant-appellant is well-adjusted and employs his time usefully. Nor is full-time confinement called for, for he is not a criminal in the ordinary sense and has only this aberrant, hot-blooded, not unprovoked act to his discredit. And yet some penalty must be imposed in furtherance of the deterrent and punitive aspects of the sentencing process. Imposition of an intermittent sentence appears, in our view, to provide the appropriate sanction. The sentencing court will require an updated probation report, particularly to provide information as to the days and hours of defendant’s employment so that the court may be enabled to impose such terms as will properly fulfill the purposes of an intermittent sentence. Concur — McGivern, P. J., Markewieh, Nunez and Macken, JJ.