
    The People of the State of New York, Respondent, v Dora McSpirit, Appellant.
    Supreme Court, Appellate Term, Second Department,
    January 22, 1993
    APPEARANCES OF COUNSEL
    
      Gurda, Gurda & Smith, Middletown (Alex Smith of counsel), for appellant. Francis D. Phillips, II, District Attorney of Orange County, Goshen (David R. Huey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Judgment of conviction modified on the law and as a matter of discretion in the interest of justice by deleting the term of incarceration from the sentence imposed, and as so modified, affirmed.

Under all the circumstances, including the absence of a prior criminal record on defendant’s part and any accident occurring as a result of her offense, the interest of justice will be satisfied by a modification of the sentence imposed as above indicated.

Defendant’s affidavit of errors asserts that the court below has a policy of incarcerating those who refuse to take a breathalyzer test and are thereafter convicted of driving while impaired. Inasmuch as there is no denial of said allegation in the Justice’s return, it is deemed admitted (People v Feldes, 73 NY2d 661). We are of the view that the policy as such is arbitrary, capricious and unauthorized by statute (People v Ogden, 117 Misc 2d 900, 903-904). It ignores, moreover, other criteria warranting an impartial and judicious evaluation, e.g., "the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” (People v Farrar, 52 NY2d 302, 305; see also, CPL 390.30 [1]; Penal Law § 1.05 [6]; People v Notey, 72 AD2d 279, 283 [2d Dept 1980]).

DiPaola, P. J., and Stark, J., concur; Ingrassia, J., taking no part.  