People v. Molders

Appeal by the defendant, as limited by her brief, from so much of a sentence of the County Court, Rockland County (Nelson, J.), imposed November 6, 1989, upon her conviction of grand larceny in the third degree, upon her plea of guilty, as imposed a six-month term of imprisonment in the county jail as a condition of a term of probation.

*431Ordered that the sentence is reversed insofar as appealed from, as a matter of discretion in the interest of justice, the six-month term of imprisonment as a condition of the term of probation is vacated, and the matter is remitted to the County Court, Rockland County, to set a term of community service as a condition of the term of probation.

The trial court did not abuse its discretion by imposing a six-month term of incarceration as a condition of a five-year probationary term. However, between the entry of the plea and the date of sentencing, the defendant gave birth prematurely to a daughter, who suffers from Down’s Syndrome. In addition, the record indicates that the child has severe cardiac problems, which will require surgery in the near future. It is further undisputed that the child requires close daily supervision by the defendant, who actively participates in her medical care. Under these extraordinary circumstances, we find that instead of the period of incarceration, it is more appropriate, as a matter of our discretion, to substitute therefor a term of community service which the defendant indicates she can perform during the hours the child is in a special support program for infants with Down’s Syndrome. Mangano, P. J., Lawrence, Sullivan, Miller and Ritter, JJ., concur.