Opinion
February 24, 1966
Appeal from the Oswego County Court.
Present — Bastow, J.P., Goldman, Henry, Del Vecchio and Marsh, JJ.
Judgment unanimously modified on the law and facts and in the exercise of discretion by reducing the sentence to an indeterminate term of from one to two years and as so modified affirmed. Memorandum: Following a plea of guilty to the first count of an indictment charging the defendant as Deputy Clerk of the Board of Supervisors of the County of Oswego with a violation of section 1865 of the Penal Law "Misappropriation and falsification of accounts by public officers", the defendant was sentenced to imprisonment at the Westfield State Prison for Women at Bedford Hills, New York, under an indeterminate sentence, the minimum not less than three years and the maximum not more than six years. The sole ground for appeal is that the sentence is excessive and should be reduced by this court pursuant to the authority of subdivision 1 of section 543 of the Code of Criminal Procedure. In reviewing the propriety of a sentence in a particular case the court must give consideration to all the elements involved concerning the crime itself and the wrongdoer. As was stated in People v. Silver ( 10 A.D.2d 274, 276): "In sum, a sentence must not only encompass the community's condemnation of the defendant's misconduct, but must also evaluate the possibilities of the rehabilitation of the defendant as a useful and responsible member of the community." Defendant is 36 years of age, she has been married 15 years, her husband is a postal employee and she has three children, 12, 10 and 5. According to the probation report she has no record of previous involvement with the law and no demonstration has been made of any previous conduct on her part that would reflect on her character or sense of responsibility in her family or community life. The record discloses a proper case for the exercise of discretion to reduce the sentence. ( People v. Burghardt, 17 A.D.2d 912.) The judgment should be modified by reducing the sentence to imprisonment in the State Prison for Women at Bedford Hills under an indeterminate sentence, the minimum of which shall be not less than one year and the maximum of which shall be not more than two years, and as so modified, it should be affirmed.