Opinion
February 18, 1971
Appeal from the Onondaga County Court.
Present — Marsh, J.P., Gabrielli, Moule and Henry, JJ.
Judgment unanimously modified in the exercise of discretion to sentence defendant to a five-year term of probation upon the conditions specified in section 65.10 Penal of the Penal Law and as so modified, affirmed. Memorandum: While the record provides ample support for the judgment of conviction of burglary in the third degree, we feel that the sentence of the defendant as a male between 16 and 21 years of age to a reformatory period of imprisonment was an improvident exercise of the court's discretion. After a very complete review of the pertinent facts surrounding the defendant's participation in the crime charged and the background of his personal life prior to and subsequent thereto, the presentence probation report concludes: "It is indicated that his involvement in the present case is because of his drinking. Defendant is now married and has accepted the responsibility, not only of a wife but of her five children. He maintains a very nice home, has a good job and claims that his drinking of intoxicants is something of the past. It appears that he has turned over the proverbal `new leaf'. It appears that the defendant is not a risk in the community." Having regard to the nature and circumstances of the crime and to the history, character and condition of the defendant, we are of the opinion that institutional confinement of the defendant is not necessary for the protection of the public, and that the defendant's need of guidance and other assistance can most effectively be met through probation supervision.