Opinion
June 1, 1976
Appeal by defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County, rendered April 7, 1976, upon his conviction of criminal facilitation in the first degree, after a nonjury trial, the sentence being an indeterminate prison term not to exceed three years. Sentence modified, as a matter of discretion in the interest of justice, by reducing it to a period of probation. As so modified, sentence affirmed and case remanded to the Criminal Term to fix the period and terms of probation. While the probation report submitted eschews a recommendation, the defendant's counsel in the sentencing minutes referred to the probation report's recommendation for probation. Further, the sentencing court stated that the sentence was "contrary to the recommendation of the Probation Department". We find the Probation Department's indication of probation for this first offender to be supported by the record. Margett, Acting P.J., Shapiro and Hawkins, JJ., concur; Damiani and Rabin, JJ., dissent and vote to affirm the sentence.