Opinion
December 31, 1973
Each of the two defendants appeals, as limited by their brief, from a separate sentence of the Supreme Court, Queens County, both rendered February 23, 1973, imposing a jail term of one year upon him, on a conviction of unauthorized use of a vehicle, a class A misdemeanor (Penal Law, § 165.05), upon a guilty plea. Sentences affirmed. No opinion. The case is remitted to the Criminal Term for proceedings to require defendants to surrender themselves to said court in order that execution of the judgments be commenced or resumed (CPL 460.50, subd. 5). Latham, Acting P.J., Gulotta, Christ and Benjamin, JJ., concur; Shapiro, J., dissents and votes to modify the sentences to change each to a term of three years' probation, with the following memorandum: It seems apparent that both appellants are hard-working men, one with three children and the other with six children. Neither has a prior record and doubtlessly, both have learned a lesson. Moreover, while disclaiming that he was influenced thereby, the Sentencing Justice had received information from the Police Department that appellants were involved "in a car ring" and were under investigation for theft of 16 automobiles, as to which no accusation had been formally made. Under the circumstances, I would change each jail term to a term of three years' probation as allowed by statute (Penal Law, § 65.00, subd. 3, par. [b]), which, in this case, will effectually serve the purpose of proper punishment.