People v. Spratt

99 A.D.2d 761, 471 N.Y.S.2d 681, 1984 N.Y. App. Div. LEXIS 17139

Opinion

Appeal by defendant, as limited by his motion, from a sentence of the County Court, Nassau County (Goodman, J.), imposed April 12,1983, upon his conviction of operation of a motor vehicle while under the influence of alcohol as a felony, on a plea of guilty, the sentence being a definite term of imprisonment of one year in the county jail. Sentence modified, as a matter of discretion in the interest of justice, by reducing it to a term of six months’ imprisonment and five years’ probation. The sentence of imprisonment shall be a condition of and shall run concurrently with the sentence of probation. As so modified, sentence affirmed and case remitted to the County Court, Nassau County, to fix the terms and conditions of probation, one of which shall be that defendant participate in an alcoholism treatment program, and for further proceedings pursuant to CPL 460.50 (subd 5). While we agree with the County Court that a sentence of incarceration is warranted in this case, it is our view the interests of both the community and the defendant would be better served if the sentence of incarceration were combined with a probationary sentence which would require that defendant participate in an alcoholism treatment program. Since the maximum term of incarceration which may be imposed for a felony conviction where a sentence of incarceration is combined with a probationary sentence is six months (Penal Law, § 60.01, subd 2, par [d]), we have reduced the term of incarceration to that period. Mollen, P. J., Titone, Lazer and Brown, JJ., concur.