Opinion
Argued September 9, 1985
Decided October 8, 1985
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Daniel Sullivan, J.
Jonathan H. Oberman and William E. Hellerstein for appellant.
Mario Merola, District Attorney (Michael J. Eng and Billie Manning of counsel), for respondent.
Order affirmed. It is clear from this record that the sentencing court did consider "the nature and circumstances of the crime and * * * the history and character of the defendant" (Penal Law § 70.02 [c] [i]), correctly including whether, in view of defendant's physical condition, a sentence of imprisonment would be "unduly harsh". Thus, it cannot be said that the court failed to exercise its discretion or abused that discretion as a matter of law.
Concur: Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE.