People v. Waltower — 62 Misc. 2d 939

Majority

p. 939

The People of the State of New York, Respondent, v. Cornell Waltower, Appellant.

Supreme Court, Appellate Term, Second Department,

January 28, 1970.

Milton Adler and James I. Constantinople for appellant. Eugene Gold, District Attorney (Harry Brodbar of counsel), for respondent.

Pursuant to subdivision 3 of section 913-m of the Code of Criminal Procedure, defendant was sentenced on April 7, 1969 to a period of probation not to exceed five years, as a youthful offender, for criminal possession of a dangerous drug in the fourth degree (Penal Law, § 220.05), a class A misdemeanor. Subdivision 3 of section 913-m was amended, effective September 1, 1969, to provide that a youthful offender sentence shall be governed by the provisions applicable to a sentence imposed upon a conviction for the criminal act underlying the adjudication. Section 65.00 (subd. 3, par. [b]) of the Penal Law provides- the period of probation for a class A misdemeanor shall be three years. On consent of the District Attorney, the sentence is reduced to the extent indicated.

The judgment adjudicating defendant a youthful offender unanimously should be modified on the facts by reducing the sentence to probation for three years, and, as modified, affirmed.

Concur — Croat, P. J., Rinaldi and Cone, JJ.

Judgment modified, etc.