Opinion
October 15, 1973
Appeal by defendant from (1) a judgment of the County Court, Westchester County, rendered February 26, 1973, convicting him of grand larceny in the second degree, upon his guilty plea, and sentencing him to an indeterminate prison term not to exceed four years and (2) an order of the same court, dated February 5, 1973, which denied his motion, made after the guilty plea but prior to the sentence, to dismiss the indictment. Order affirmed. No opinion. Case remitted to the County Court for proceedings to direct defendant to surrender himself to said court in order that execution of the judgment be commenced or resumed (CPL 460.50, subd. 5). Judgment modified, in the exercise of discretion, by changing the sentence to a definite term of one year. As so modified, judgment affirmed. In our opinion, the sentence was excessive to the extent indicated herein. Hopkins, Acting P.J., Latham, Christ and Benjamin, JJ., concur; Shapiro, J., concurs in the affirmance of the order, but otherwise dissents and votes (1) to modify the judgment by changing the sentence to a period of probation, the conditions of which should include a requirement that defendant make further restitution (Penal Law, § 65.00, 65.10 Penal), and (2) to affirm the judgment as so modified, with the following memorandum: It should be noted, inter alia, that (a) the Assistant District Attorney at the time of the sentence informed the court that defendant had fully co-operated with the District Attorney since January, 1970 in furnishing documentary and other evidence material and necessary to the prosecution of the indictments against the other persons involved in the fraudulent conduct which led to the indictment against defendant; (b) the presentence report shows that prior to this conviction defendant had no criminal record; (c) defendant presently is employed and supporting a wife and three children; and (d) if defendant were allowed to continue with his present employment he might be able to make some further restitution to the parties he had defrauded.