Defendant, a lawyer, pleaded guilty to the crime of forgery in the second degree under section 170.10 of the Penal Law, a class D felony. The crime to which he pleaded guilty involved the forgery of an indorsement on a check for $250,000. He admitted that ulti*242mately he placed the proceeds of this check in his personal account. The indictment charges a course of larceny involving the theft of over $2,500,000, while the defendant was a member of two of the most prominent law firms in this city.
At the time of the plea of guilty, there was stated on the record the understanding between the defendant and the District Attorney that the term to which the defendant would be sentenced would be no more than three years’ imprisonment; that the commencement of any sentence of imprisonment would be stayed for a sufficient period to permit the defendant to co-operate with the office of the District Attorney and the Securities and Exchange Commission with respect to matters as to which he had already supplied information, and any other matter concerning which he had knowledge or information; and that, provided the defendant co-operated fully, the District Attorney would bring his co-operation to the attention of the court prior to the commencement of sentence and recommend that any sentence of imprisonment be changed to a sentence of probation; but that the court was not binding itself to accept the recommendation.
On June 10, 1976, defendant was sentenced to an indeterminate term of imprisonment with a maximum of three years. Pursuant to the understanding of the court, the District Attorney and the defendant, execution was stayed. The stay of execution was extended from time to time.
On June 29, 1977, the defendant, his attorney and the District Attorney appeared before the trial court on an application, joined in by all parties, to modify the sentence to one of probation. The District Attorney stated that defendant had co-operated fully and would continue to. A letter was submitted from the Director of the Division of Enforcement of the Securities and Exchange Commission confirming that fact, and the good faith and the value of the defendant’s co-operation. Nevertheless the sentencing Judge refused to vacate the sentence and ordered the defendant remanded. From this determination the defendant appeals to this court asking that this court impose a sentence of probation. The District Attorney urges that the sentence be vacated and that the defendant be resentenced taking into consideration the circumstances recited.
I agree that the defendant is entitled to be resentenced and that the resentence should take into consideration the statements made at the time of the plea and his subsequent co*243operation. At the time of his plea, the defendant was fairly led to believe by the acts and statement of all parties, that if he fully co-operated, he would get some benefit in his sentence from that. In this context, the statement that the court would not be bound by the recommendation could only mean that the court was not bound to impose a sentence of probation. But some benefit the defendant was promised, at least implicitly. The court refused to give him such a benefit. I think he was entitled to substantial benefit from the fact of his good faith and full co-operation. To do otherwise would constitute "trifling with the legitimate expectations of pleading defendants”. (People v Selikoff, 35 NY2d 227, 240.)
I further recognize that it seems to be a widely held belief of prosecutors in this country that effective prosecution requires extending leniency to malefactors for information.
I therefore agree that the defendant is entitled to a reduction of sentence. What should the reduced sentence be? The defendant requests that the sentence be one of probation and not involve a term of imprisonment.
In determining whether to impose a sentence of probation or one of imprisonment, the court must have "regard to the nature and circumstances of the crime and to the history, character and condition of the defendant”. (Penal Law, § 65.00, subd 1, par [a]; see, also, § 70.00, subd 4.)
The crime committed by the defendant involved a calculated series of thefts and forgeries on a large scale and the betrayal of trust by a prominent lawyer. On the other hand, the crime did not involve any violence. And while it is just as much a crime to steal from the rich as from the poor, it remains true that defendant’s crime seems not to have subjected anyone to severe privation, or perhaps any privation.
As to the history, character and condition of the defendant, he was, as I have said, a prominent lawyer with of course no previous criminal involvement. It is clear that even without a prison sentence, this defendant, having much more than the usual defendant in our courts, had much more to lose by the judgment of conviction, and has therefore lost much more. Thus after 25 years in the only profession he knows, a profession in which he has achieved both prominence and wealth, he is expelled from that profession as unworthy. Further, he has made very substantial restitution; in settlement of the civil claims against him he has paid $500,000 in cash and has given up pension rights estimated to be worth *244well over $1,000,000. The defendant has been and will clearly be punished whether or not a prison sentence is imposed.
It is also plain that imprisonment is not necessary for the protection of the public. (See Penal Law, § 65.00, subd 1, par [a]), cl [i].)
But before imposing a sentence of probation without imprisonment, the court must determine that "such disposition is not inconsistent with the ends of justice.” (Penal Law, § 65.00, subd 1, par [a], cl [iii].)
In considering the ends of justice, we need not concern ourselves in this case with the need for deterrence, either for the defendant or other lawyers. Plainly the punishment that the defendant will suffer whether or not he is imprisoned will be as effective, or ineffective, a deterrent as imprisonment.
The provisions of our statute as to criteria for a sentence of probation (Penal Law, § 65.00, subd 1) are essentially taken from section 7.01 of the Model Penal Code. In that code, instead of the provision I have quoted that "such dispositon is not inconsistent with the ends of justice”, the Model Penal Code imposes as a consideration for imprisonment that "a lesser sentence will depreciate the seriousness of the defendant’s crime.” (Model Penal Code, § 7.01, subd [1], par [c].) The same consideration is stated in the American Bar Association’s Standards Relating to Sentencing Alternatives and Procedures, Approved Draft (Sept., 1968, p 63) that: "One instance [where a prison term is indicated] would occur where the seriousness of the offense is inconsistent with a sanction other than imprisonment.”
Included in the "ends of justice” is also the consideration that the sentence imposed upon the defendant shall not be grossly disproportionate one way or the other to the sentences imposed on other defendants for crimes of comparable seriousness.
I think that not to impose a prison sentence in this case would "depreciate the seriousness of the defendant’s crime” and be disproportionately lenient. I therefore think a sentence of imprisonment should be imposed.
However, in view of the punishment that the defendant suffers quite apart from the imprisonment (i.e., disbarment and disgrace as well as very substantial restitution), and the implicit promise at the time of plea, the sentence should be a relatively short one; and indeed a relatively short prison *245sentence in this case would serve all penological purposes as well as a long one. This appears to me to be a proper case for the application of subdivision 4 of section 70.00 of the Penal Law, which provides with respect to, among other things, class D felonies (which is what this defendant pleaded guilty to) that: "When * * * the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate sentence, the court may impose a definite sentence of imprisonment and fix a term of one year or less.”
I would reduce the sentence to a definite sentence of imprisonment for a term of six months.
Evans, Lane and Markewich, JJ., concur in Per Curiam opinion; Silverman, J. P., dissents in an opinion.
Judgment, Supreme Court, New York County, rendered on June 29, 1977, modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of five years’ probation, remanding the matter to another Judge to fix the conditions of probation, and otherwise the judgment is affirmed.