People v. Rodriguez

— Judgment unanimously modified, as a matter of discretion in the interest of justice, to reduce the sentence to a three-year period of probation and, as modified, the judgment is affirmed and matter remitted to Erie County Court, for further proceedings, in accordance with the following memorandum: Defendant was indicted for the crimes of assault in the first degree, assault in the second degree, and possession of a weapon in the fourth degree, arising out of an altercation in which a person was stabbed. The court dismissed the first degree assault charge and the jury acquitted defendant of the charge of assault in the second degree. He was found guilty of the misdemeanor charge of criminal possession of a weapon in the fourth degree. The court imposed a sentence of six months’ incarceration from which defendant appeals. Defendant has been gainfully employed for the past four years, and provides the sole support and care for his two children since their mother’s death in 1979. The presentence report indicates he has been leading a stable life since 1977. While the record before us does indicate a criminal history, defendant’s prior offenses were nonviolent. Consequently, as a matter of discretion, in the interests of justice, the sentence is modified to three years’ *1169probation and the matter is remitted to Erie County Court for the purpose of fixing terms and conditions of probation (Penal Law, § 65.10). (Appeal from judgment of Erie County Court, Wolfgang, J. — criminal possession of a weapon, fourth degree.) Present — Dillon, P. J., Hancock, Jr., Doerr, Denman and Moule, JJ.