People v. Mastropolo

• Decision Date: 13 April 1981
• Citation: 81 A.D.2d 623,441 N.Y.S.2d 406
• Parties: The PEOPLE, etc., Respondent, v. Richard MASTROPOLO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 406

441 N.Y.S.2d 406

81 A.D.2d 623

The PEOPLE, etc., Respondent, v. Richard MASTROPOLO, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

April 13, 1981

John F. Middlemiss, Jr., Hauppauge (James H. Miller, III, Smithtown, of counsel), for appellant. Patrick Henry, Dist. Atty., Riverhead (Marion T. McNulty, Hauppauge, of counsel), for respondent.

Three amended judgments of the County Court, Suffolk County (Tanenbaum, J.), each rendered November 1, 1979, affirmed. No opinion.

MANGANO, J. P., and GIBBONS and GULOTTA, JJ., concur.

O'CONNOR, J., dissents and votes to modify the amended judgments by vacating the sentences and imposing sentences of probation, with the following memorandum:

Defendant, Richard Mastropolo, a 40-year-old man with a high school diploma, has been a user of drugs for over 20 years. On at least two occasions during that period he entered programs for control of his addiction. Then, in 1977, he was indicted on charges of burglary and grand larceny. He pleaded guilty to reduced charges and was sentenced to concurrent sentences of three years probation for petit larceny and five years probation for two grand larceny convictions. Prior to this instance, defendant had no criminal convictions.

As a condition of defendant's probation, he was required to enter a facility for the treatment of narcotics addiction and continue as an in-patient at the Alba-Neck Halfway House Drug Rehabilitation Center until he successfully completed its program. Mastropolo successfully completed the four steps of the program and, in fact, graduated in early 1979. He stayed on at Alba-Neck as a counselor. He was then free to come and go as he pleased. As a result of an incident involving marijuana in May of 1979, defendant was "de-graduated" to Step III of the program. Frustrated with this demotion, Mastropolo left the program without notifying his probation officer. He was then charged with violating the conditions of his probation and, after a hearing, was sentenced to two indeterminate terms of incarceration for a maximum of four years and one definite term of one year to run concurrently with the indeterminate sentences.

The majority in this court has decided to affirm the imposition of the prison sentences for Richard Mastropolo, apparently believing that he has been given a chance to rehabilitate himself in good faith, and, having demonstrated his inability to comply with the conditions imposed on his probation,...