Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered October 19, 1962 upon his plea of guilty, convicting him of criminally buying and receiving stolen property as a misdemeanor, and sentencing him to serve one year in the New York City Penitentiary. Defendant is at liberty on a certificate of reasonable doubt. Judgment modified on the law and on the facts to the extent of suspending the execution of the sentence and placing the defendant on probation for a period of three years. As so modified, judgment affirmed. In our opinion, under all the circumstances here, the defendant, who is a first offender, is a proper subject for probation (cf. Penal Law, §§ 1308, 1937; Code Crim. Pro., § 933; People v. Zuckerman, 5 N.Y.2d 401; People ex rel. Goldberg v. Sheriff of Suffolk County, 206 Misc. 820; People v. Foote, 144 Misc. 134; People v. Silver, 10 A.D.2d 274).
Hill, Rabin and Hopkins, JJ., concur; Beldock, P.J., and Kleinfield, J., dissent and vote to affirm the judgment, with the following memorandum:
On August 17, 1961 defendant was indicted for criminally buying and receiving stolen property as a felony, and for criminally concealing and withholding stolen and wrongfully acquired property, also as a felony. The subject matter of the theft was a trailer truck of considerable value. On May 14, 1962 the court exercised its discretion in accepting defendant's plea of guilty to criminally buying and receiving stolen property as a misdemeanor. On October 19, 1962 defendant was sentenced to one year in the penitentiary. Where (as here) the defendant has been charged with a felony and he has been given consideration by the acceptance of a plea of guilty to a misdemeanor, these facts, together with the facts disclosed by the Probation Department's presentence investigation report, demonstrate that in this case the sentence of one year in the penitentiary was a proper exercise of discretion on the part of the sentencing Judge and that such sentence should not be disturbed by an appellate court.