The People of the State of New York, Respondent, v. Donald Seamon, Appellant

The People of the State of New York, Respondent, v. Donald Seamon, Appellant. [MAJORITY] Judgment unanimously modified, in the exercise of discretion, to sentence defendant to a five-year term of probation and case remitted to Herkimer County Court for imposition of conditions of probation as specified in section 65,10 of the Penal Law. Memorandum: Defendant has been incarcerated since July 23, 1971. In reviewing the record before us we find that the sentence was unduly harsh and severe in the circumstances (GPL 470.15, subd. 6, par. [b]). The probation report shows that defendant is married and has no prior record except a conviction for leaving the scene of an accident. The report - is generally favorable to him. Because of this report and since defendant has been incarcerated since July 23, 1971, modification of the sentence to a term of probation would be appropriate. By so modifying his sentence, supervision of defendant for a period of five years from the date of conviction is assured. (Penal Law, § 65.00, subd. 3, par. [a].) (Appeal from judgment of Herkimer County Court convicting defendant of criminally selling dangerous drugs, third degree and criminal possession of dangerous drug, fifth degree.) Present—■ Goldman, P. J., Marsh, Moule and Henry, JJ.