People v. Simonian 79 A.D.2d 956

Judgment, Supreme Court, New York County, rendered January 25,1974, convicting the defendant on his guilty plea of attempted criminal sale of a dangerous drug in the first degree, and sentencing him to an indetermi*957nate term not to exceed five years, unanimously modified, on the law, and as a matter of discretion and in the interest of justice, to the extent of reducing the sentence imposed to a term of probation of five years, and except, as thus modified, affirmed. The Judge at the plea and the sentence was of the opinion that a sentence of probation was adequate and appropriate under the circumstances in this situation and in accordance with the presentence report which has been brought up to date, but considered himself constrained by a commitment to the prosecutor with reference to the sentence. We have heretofore indicated that a Judge “is free to impose whatever sentence he thinks is just within the legal limits.” (People v Maldonado, 70 AD2d 308,310.) We are of the view in the light of the lack of a previous criminal record and the defendant’s relative youth, that there was a proper basis for the view expressed by the Judge at sentence, and accordingly we modify in accordance therewith. Concur — Kupferman, J. P., Sullivan, Ross and Markewich, JJ.