People v. Miller ( 1982 )

Judgment of the Supreme Court, New York County (McQuillan, J., on the suppression hearing; Haft, J., on the plea and sentence), rendered on August 1,1980, convicting defendant of criminal possession of a weapon in the third degree and sentencing him to six months, unanimously modified, as an exercise of discretion and in the interest of justice, to the extent of vacating the sentence and remanding for fixing of a new sentence on an updated probation report, and otherwise affirmed. Notwithstanding the Probation Department’s recommendation of probation and the considerations that gave rise to that recommendation, we are not persuaded that the sentence of six months fixed on the defendant upon his plea to criminal possession of a weapon in the third degree was excessive. However, two years have elapsed since that sentence was fixed, during which period the defendant has been free on bail properly continued by the sentencing Judge.

When this period of time is considered together with other circumstances bearing on the defendant’s sentence, we think it preferable that the sentencing Judge be given an opportunity to re-evaluate the sentence on the basis of an updated probation report. Concur — Kupferman, J. P., Sandler, Sullivan and Carro, JJ.