People v. McSpirit

OPINION OF THE COURT Memorandum. Judgment of conviction modified on the law and as a matter of discretion in the interest of justice by deleting the term of [785] incarceration from the sentence imposed, and as so modified, affirmed. Under all the circumstances, including the absence of a prior criminal record on defendant’s part and any accident occurring as a result of her offense, the interest of justice will be satisfied by a modification of the sentence imposed as above indicated. Defendant’s affidavit of errors asserts that the court below has a policy of incarcerating those who refuse to take a breathalyzer test and are thereafter convicted of driving while impaired. Inasmuch as there is no denial of said allegation in the Justice’s return, it is deemed admitted (People v Feldes, 73 NY2d 661). We are of the view that the policy as such is arbitrary, capricious and unauthorized by statute (People v Ogden, 117 Misc 2d 900, 903-904). It ignores, moreover, other criteria warranting an impartial and judicious evaluation, e.g., "the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” (People v Farrar, 52 NY2d 302, 305; see also, CPL 390.30 [1]; Penal Law § 1.05 [6]; People v Notey, 72 AD2d 279, 283 [2d Dept 1980]). DiPaola, P. J., and Stark, J., concur; Ingrassia, J., taking no part.