Opinion
January 22, 1993
Appeal from the Justice Court of the Town of Goshen, Orange County, Richard Gillette, J.
Gurda, Gurda Smith, Middletown (Alex Smith of counsel), for appellant.
Francis D. Phillips, II, District Attorney of Orange County, Goshen (David R. Huey of counsel), for respondent.
MEMORANDUM.
Judgment of conviction modified on the law and as a matter of discretion in the interest of justice by deleting the term of 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 N.Y.2d 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 N.Y.2d 302, 305; see also, CPL 390.30; Penal Law § 1.05; People v Notey, 72 A.D.2d 279, 283 [2d Dept 1980]).
DiPAOLA, P.J., and STARK, J., concur; INGRASSIA, J., taking no part.