People v. Maldonado , 605 N.Y.S.2d 36 ( 1993 )

Judgment of the Supreme Court, New York County (Stephen G. Crane, J., at plea, sentence and resentence), entered January 30, 1991, which (1) vacated a sentence of 5 years’ probation, imposed following judgment rendered May 25, 1990, convicting defendant, upon her plea of guilty, of attempted criminal sale of a controlled substance in the third degree and (2) resentenced her to an indeterminate period of incarceration of from 2 to 12 years for violation of the terms of her probation, unanimously modified, on the law and the facts and in the exercise of discretion in the interest of justice, and the sentence reduced to time served.

We note that defendant opposed the offer of probation, together with participation in a residential drug treatment program, asking instead to be sentenced to a definite term of 6 months’ imprisonment. Considering that defendant has a long history of drug and alcohol abuse, it is understandable that the court preferred a residential drug treatment program with probation. However, it is not in the interest of justice to impose a greater penalty for failure to comply with the conditions of parole than the proposed initial sentence of 6 months. Inasmuch as defendant has now served more than this period of time, we find the sentence of 2 to 12 years to be excessive and modify the sentence accordingly to time served (see, People v Cowell, 170 AD2d 343). Concur—Carro, J. P., Ellerin, Kupferman and Rubin, JJ.