People v. Smith , 634 N.Y.S.2d 578 ( 1995 )

—Appeal from a judgment of the County Court of Albany County (Harris, J.), rendered November 19, 1993, upon a verdict convicting defendant of the crimes of criminal use of drug paraphernalia in the second degree and resisting arrest.

As the result of a police raid on a crack house in the City of Albany, defendant was found guilty after a jury trial of criminal use of drug paraphernalia in the second degree and resisting arrest. She was sentenced to consecutive terms of one year in jail for each crime. Defendant contends that the sentence imposed is harsh and excessive given her demonstrated commitment to rehabilitation and the care of her nine-year-old daughter. We agree.

The record reveals that, since her arrest, defendant has completed counseling classes and substance abuse programs, performed volunteer work and obtained employment. She has taken steps to establish a new lifestyle with her daughter. Recognizing defendant’s efforts, the presentence report recommended that she be put on probation, rather than sentenced to jail. Moreover, even the District Attorney has not objected to a reduction of defendant’s sentence. In view of these considerations, as well as the fact that defendant has already served almost 51/2 months in jail, we find that defendant’s sentence should in the interest of justice be reduced to time served (see, People v Todd GG., 196 AD2d 907; People v Board, 97 AD2d 610).

Mercure, J. P., Crew III, White, Peters and Spain, JJ., concur. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence to time served, and, as so modified, affirmed.