Opinion
May 9, 1988
Appeal from the Supreme Court, Suffolk County (McInerney, J.).
Ordered that the sentence is modified, as a matter of discretion in the interest of justice, by deleting therefrom the indeterminate sentence of incarceration and substituting therefor a period of five years' probation (Penal Law § 65.00 [a] [i]). As so modified, the sentence is affirmed and the matter is remitted to the Supreme Court, Suffolk County, for the imposition of appropriate conditions of probation and for further proceedings pursuant to CPL 460.50 (5).
In our opinion, the circumstances of this case warrant the exercise of our discretion so as to modify the sentence with respect to the term of imprisonment. "While concededly death eventually claims everyone, the innocent as well as the guilty, such truism should never deter this court from setting aside a term of imprisonment where it is manifest that incarceration would hasten the death of a defendant, yet confer little or no benefit upon the general public" (People v Notey, 72 A.D.2d 279, 285). Mollen, P.J., Mangano, Thompson and Weinstein, JJ., concur.