People v. Staples , 57 A.D.2d 870 ( 1977 )

Appeal by defendant from a judgment of the County Court, Westchester County, rendered December 4, 1974, upon resentence, convicting him of criminally negligent homicide, assault in the third degree, operating a motor vehicle while intoxicated, and violating subdivision 1 of section 1192 and section 1121 of the Vehicle and Traffic Law, upon a jury verdict, and imposing sentence. Judgment affirmed as to the conviction; judgment reversed as to the sentence, as a matter of discretion in the interest of justice, and case remanded to the County Court for resentencing in accordance herewith. Defendant’s guilt was established beyond a reasonable doubt and the sentences imposed were not excessive as a matter of law. However, the sentencing minutes indicate that the court, in imposing the maximum terms, took cognizance of the fact that the defendant had underrated his drinking problem and was not willing to seek help for it. Noting that the defendant, if not incarcerated, would pose a threat on the highways the court imposed the present sentences. However, the defendant has been free on bail since the middle of December, 1974 and has not, since the accident, driven a vehicle. Horeover, he contends that, on his own initiative, he has stopped drinking and that he is thus fully rehabilitated. Accordingly, in the interest of justice, the case should be remanded for resentencing in the light of the above, and upon the submission of an updated presentence report by the probation department. Hartuscello, J. P., Latham, Shapiro and O’Connor, JJ., concur.