People v. Craig M.

Appeals by the People and the defendant, as limited by their briefs, from a sentence of the Supreme Court, Suffolk County, imposed January 27, 1977, upon defendant’s adjudication as a youthful offender, after his plea of guilty to the crime of criminal sale of a 638 controlled substance in the third degree, the resentence being to a term of lifetime probation. Resentence reversed, on the law, and case remanded to Criminal Term for resentencing in accordance herewith. Since the offense was committed prior to July 31, 1974, defendant should have been sentenced under the provisions of former CPL 720.25, which were interpreted to authorize the imposition of probationary sentences upon defendants convicted of class C felonies (see People v James M., 47 AD2d 907). Furthermore, since a class A-III felony is roughly equivalent to the prior class D felony crimes under former section 220.15 of the Penal Law (see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 65.00, p 169), a definite term of imprisonment of less than one year is also authorized (see Penal Law, § 70.00, subd 4). Accordingly, upon remand, the court is authorized to impose either a definite sentence of less than one year (Penal Law, § 70.00, subd 4), or, consistently with a fair interpretation of the sentencing provisions, a five-year probational sentence (see, generally, People v Ruben S., 82 Misc 2d 884). Latham, J. P., Cohalan, Rabin and Hawkins, JJ., concur.