Opinion
April 5, 1971
Appeal by defendant from a judgment of the County Court, Nassau County, rendered January 16, 1970, convicting him of attempted forgery in the second degree, on his plea of guilty, and sentencing him to a prison term of not more than three years. Judgment modified, in the exercise of discretion, by reducing the sentence to a period of probation, upon condition of restitution, in accordance with sections 65.00 and 65.10 (subd. 2, par. [f]) of the Penal Law (Code Crim. Pro., § 543, subd. 2), and case remitted to the County Court for a hearing and determination on the question of the amount of restitution and the manner of performance. As so modified, judgment affirmed. In our opinion, having regard to the nature and circumstances of the crime and to the history, character and condition of this defendant, it was an improvident exercise of discretion to sentence him to a period of imprisonment. The ends of justice may properly be served by a period of probation, as set forth in section 65.00 Penal of the Penal Law for the term specified therein for a class E felony, on condition that defendant make restitution of the fruits of his offense in an amount he can afford to pay and in appropriate manner. Since the record is insufficient to permit a determination as to the amount of restitution and the manner of performance (Penal Law, § 65.10, subd. 2, par. [f]), the case is remitted to the County Court for a hearing and determination thereon. Latham, Acting P.J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.