Opinion
June 9, 1980
Appeal by defendant from a judgment of the County Court, Suffolk County, rendered June 10, 1976, convicting him of robbery in the third degree, upon a plea of guilty, and sentencing him to an indeterminate term of imprisonment with a maximum of three years. Judgment modified, as a matter of discretion in the interest of justice, by reducing defendant's sentence to a conditional discharge, the period of which shall be reduced by any time spent in jail plus the period from March 21, 1977 to November 7, 1979. As so modified, judgment affirmed and case remitted to the County Court, Suffolk County, for the imposition of appropriate conditions and for further proceedings pursuant to CPL 460.50 (subd 5). By order of the Supreme Court, Suffolk County, dated June 16, 1976, defendant was granted a stay of execution. This court, by order dated March 21, 1977, dismissed defendant's appeal. Nevertheless, the People took no action to remand defendant although he was available to them. The People commendably concede that the defendant is entitled to jail time credit (see Matter of Holland v. La Valle, 63 A.D.2d 989). In light of the probation report on defendant and the People's failure to remand defendant for more than two years, a conditional discharge is a more appropriate sanction than jail time (People v. Carney, 73 A.D.2d 692). Rabin, J.P., Cohalan, Martuscello and Weinstein, JJ., concur.
On November 7, 1979 this court restored the appeal and stay of execution.