Opinion
June 28, 1979
Judgment, Supreme Court, New York County, rendered August 14, 1978, convicting the defendant upon his plea of guilty of attempted grand larceny in the second degree and imposing a definite sentence of 60 days, to be followed by 4 years and 10 months' probation during which time the defendant was to make restitution in the sum of $200 a month, modified, as a matter of discretion in the interest of justice, to eliminate the 60-day period of incarceration and to make the period of probation five years, and otherwise affirmed. The defendant is an elderly, ailing person whose sentence was a part of the plea bargain and was justified. However, in the almost one year since that sentence, he has deteriorated physically. Nevertheless, he has continued to make the restitution required by the terms of his probation. We modify only to the extent of eliminating the 60 days of incarceration and add that period to the term of probation. It would serve no purpose, in view of the defendant's condition, to have actual incarceration, as long as he continues to comply with the terms of his probation.
Concur — Kupferman, J.P., Birns, Fein, Sandler and Lane, JJ.