PEOPLE v. BROWARNIK

Judgment, Supreme Court, New York County, rendered September 16, 1970, after a jury trial, unanimously affirmed, and the order of said court entered on May 8, 1973, denying defendant's motion for resentence, reversed, as a matter of discretion, and application remanded to Supreme Court. Defendant was convicted of conspiracy in the second degree and attempted grand larceny in the first degree after a jury trial. No error in the trial is complained of and the evidence supported the conviction. At sentence proof was submitted that defendant was suffering from a heart condition and that incarceration would prove fatal. Several stays of execution were granted. On March 18, 1972, the People moved to compel defendant to surrender and defendant cross-moved to reduce his sentence to probation. Sentence was again deferred to May 8, 1973. On this date no hearing was held but the court denied defendant's motion. A further stay was granted by this court. It is obvious from the above that despite defendant's condition at the time of conviction he has survived for some three years. A hearing should be had on his present condition and, if necessary a further examination by a cardiologist, and in the light of what eventuates a ruling made on the applications. It is patent that unless incarceration would probably cause defendant's death he should be made to serve the sentence.

Concur — Stevens, P.J., McGivern, Markewich, Murphy and Steuer, JJ.