People v. Spector ( 1981 )

Murphy, P. J. (concurring).

Based upon the new information contained in the probation report and the psychiatric evaluation, the court acted within the parameters of the plea agreement by withdrawing its conditionally promised sentence of 2⅓ to 7 years. The evidence indicates that defendant was an alcoholic undergoing treatment at the time of the occurrence. While defendant’s addiction to alcohol does not excuse her heinous act, her withdrawal from that toxicant does, to a large extent, explain her action. Her psychiatric evaluation concludes with the following pertinent remarks: “Diagnosis: Alcoholism, Episodic excessive drinking, with passive-aggressive features. Prognosis: Guarded. Therapeutic Recommendations: Defendant does not appear dangerous to herself or to others on the basis of this examination. Hospitalization or incarceration do not appear indicated. It is respectfully recommended that she be placed on probation, with the provision that she continues to attend group therapy sessions, as well as A.A., for her drinking problem.” The recommended treatment of probation is clearly too lenient. Likewise, upon the particular facts in this case, the maximum sentence imposed of 14 years is too severe. The defendant will be sufficiently punished and society will be adequately protected with the imposition of a sentence of 2⅓ to 7 years’ incarceration. During this period, it is suggested that the defendant receive continuing rehabilitative treatment for her alcoholism. In the exercise of discretion and in the interest of justice, I would modify the judgment accordingly.