People v. Oliveras

Judgment Supreme Court, Bronx County (Frank Diaz, J.), rendered April 21, 1988, which convicted defendant, after jury trial, of criminal sale of a controlled substance in the third degree and sentenced him to a prison term of 7 to 14 years, unanimously modified, as a matter of discretion in the interest of justice, to reduce the sentence to 5 to 10 years, and otherwise affirmed.

*259We have reviewed defendant’s claims regarding the sufficiency and weight of the evidence and find them without merit. Defendant’s guilt was established by the testimony of the undercover police officer who had purchased one glassine envelope of heroin from defendant in exchange for $10 and who had ample opportunity to observe the defendant during the transaction.

However, we find that the sentence of 7 to 14 years’ imprisonment imposed here is unduly harsh. Defendant was 40 years old at the time he committed this crime involving only a single $10 sale of heroin, with no other drugs or money being recovered from him. His only prior conviction also involved a minor drug sale, for which he was sentenced to five years’ probation from which he received an early discharge. It may also be noted that he had a positive employment history and possesses useful vocational skills which can be productively utilized upon his release. Accordingly, under these circumstances we find the sentence excessive to the extent indicated. Concur—Murphy, P. J., Carro, Milonas and Ellerin, JJ.