People v. Patel

Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered October 9, 2008. The judgment revoked defendant’s sentence of probation and imposed a sentence of incarceration and probation with electronic monitoring. It is hereby ordered that the judgment so appealed from is modified as a matter of discretion in the interest of justice by vacating that part revoking the sentence of probation and imposing sentence and by continuing the sentence of probation originally imposed and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of driving while intoxicated as a felony (Vehicle and Traffic Law § 1192 1247 [3]; § 1193 [1] [c] [former (i)]) and aggravated unlicensed operation of a motor vehicle in the third degree (§ 511 [1] [a]) and sentencing him to a definite term of incarceration of 120 days and continued probation with electronic monitoring. Defendant admitted that he violated one of the terms of his probation by traveling to India without the consent of the Probation Department, to be with his dying grandfather. Although we conclude that County Court did not abuse its discretion in revoking defendant’s probation based upon that admitted violation, “we can substitute our own discretion for that of a trial court which has not abused its discretion in the imposition of a sentence” (People v Suitte, 90 AD2d 80, 86 [1982]; see People v Dunn, 306 AD2d 945 [2003]). In view of the compelling mitigating factors in this case, we modify the judgment as a matter of discretion in the interest of justice by vacating that part revoking the sentence of probation and imposing sentence and by continuing the sentence of probation originally imposed. All concur except Scudder, EJ., and Smith, J, who dissent in part and vote to affirm in accordance with the following memorandum.