In his usual scholarly and impelling style, my esteemed confrere of the majority, Justice Lazer, reviews the principles and discusses the rationale attendant upon sentencing and its appellate review. And so we go pell mell on our merry, merry way! More crimes are committed, more police make more arrests, more District Attorneys process more cases, more Judges commit more people to jail, and here, the majority would affirm a jail sentence despite the presence of what, by any standard, was an abuse of sentencing discretion that warrants, nay demands, a reduction to probation. I cannot agree.
Recently released Justice Department figures for 1981 indicate that there were 369,000 adults in Federal and State prisons at the end of that year, plus nearly 157,000 in local jails.1 The National Council on Crime and Delinquency reports that the United States trails only the Soviet Union and South Africa (what a combination!) in its per capita rate of incarceration and, contrary to popular belief, in the severity of the punishments it inflicts!2 And in spite of it all, the crime rate continues to soar.3
It must be further noted that recent responsible studies on national and State levels have long since sounded the tocsin. Our badly overcrowded prisons are but a smoldering time bomb awaiting the explosion!
It seems to me that it’s about time we begin to find, in matters such as this where no violence or even threat of violence is present, alternatives to jail. I further believe that rather than joining those who bend before the incessant cry of a rightly outraged public for vengeance we, as *90appellate Judges, should seek to put some sanity into the sentences we approve under these circumstances.
I agree with the principle, articulated in the majority opinion, that an appellate court ought not disturb a sentence in the absence of an abuse of discretion by the sentencing court or unless the interest of justice so requires. I further agree that a workable test for applying this principle is whether the alleged excessiveness of the challenged sentence in fact demonstrates a failure by the sentencing court to observe the purposes of sentencing: individual and general deterrence, rehabilitation, retribution and isolation. I can even agree to the soundness of visiting upon one individual a punishment greater than would have been his had the sentencing court not decided to make an example of him in order to curb sharply a sudden manifestation in the general public of pernicious conduct previously endemic to certain subclasses, e.g., drug abuse, or to overcome widespread public intransigence to legislated curbs on historically unregulated conduct such as gun possession. But I disagree with the majority’s statement that the sentencing Judge, rather than this court, may on an ad hoc basis, subject only to personal predilections, establish the coefficients to the four variables of deterrence, rehabilitation, retribution and isolation in this sentencing formula. This court should not abdicate its responsibility for the assignment of appropriate, if somewhat inexact, weights to these factors in the discharge of its obligation to control sentencing discretion within the overarching limits fixed by the Penal Law.
Is it just or proper that we permit one sentencing Judge to count general deterrence as the overriding factor in this gun possession case under the new antigun law, with the implication that another sentencing Judge in a factually identical case may switch the emphasis in the formula to another factor, e.g., rehabilitation? Bear in mind that the difference resulting from our toleration of such ad hoc legislating by sentencing Judges is incarceration, and I most vehemently reject any argument that incarceration is but a gentle escalation of sanctions to the point at which a real deterrent effect can finally be ascertained operating on the populace. After all, 30 days in the county jail will *91surely cripple the spirit of any otherwise law-abiding citizen who honestly believed that the cost of unlawfully possessing a gun (discounted tremendously by the infinitesimally small probability of being caught) outweighed the benefit of protecting his life while conducting his livelihood in an urban war zone. I submit that it is we, as the Appellate Division, that should assign the approximate values to the parameters of the sentencing formula (to the extent possible), and that we should restrict sentencing Judges to their proper role in applying this legal formula, as so weighted, to the facts as they find them in individual cases.
I pose the questions:
(1) Is it a proper exercise of discretion to sentence to jail a first offender who poses no serious threat to the community?
(2) Does the nature of the crime here committed make it a serious threat to the community?
With these thoughts in mind, let us look at the case at bar.
On the morning of January 20, 1981, while driving through Nassau County on his way to his place of business in New York City, the defendant was stopped and arrested on a bench warrant charging him with the unauthorized use of a motor vehicle.
The validity of that warrant, or the merits of the complaint upon which it was issued, are not before the court at this time, but it should be noted that it is defendant’s contention that the charge is totally without substance, arising, he alleges, out of a misunderstanding involving the return by him of a rented automobile.
Be that as it may, upon his arrest he was found in possession of a loaded Sterling .25 calibre automatic pistol. Hé was promptly charged with the crime of criminal possession of a weapon in the third degree, a class D felony, was convicted on his plea of guilty to possession in the fourth degree, a class A misdemeanor, and was sentenced to three years’ probation with the special condition that he serve a determinate sentence of 30 days in the Nassau *92County Correctional Center. Execution of that sentence has been stayed pending appeal.
Upon appeal to this court as excessive, that sentence has been affirmed by my confreres of the majority. I respectfully disagree and strongly suggest that under the facts and circumstances here extant, it is totally inappropriate and completely counterproductive to impose a jail sentence for however short a period of time.
An objective review of the record establishes that this defendant, a successful businessman, with three years of college education, is married and the father of two children, a daughter, aged 21, and a son, 14 years of age.
Since 1973 the defendant has owned and operated a custom tailor shop which is located in a high crime area of The Bronx. A prior owner of the shop had been stabbed during one of several robberies that took place before defendant became the proprietor. The defendant lawfully purchased the gun in question in North Carolina and properly registered it in that State.
According to the arresting officers, the defendant was “very cooperative” when arrested, and readily admitted that he knew that it was illegal to carry an unregistered pistol in New York City and stated that although he had inquired about obtaining a gun permit, he had never completed the process. The defendant told the police that he thought he needed the gun for self-protection.
The probation report contains this significant appraisal: “The present offense is the defendant’s only criminal conviction and his first criminal charge in 21 years. He appears to be a devoted father and husband, as well as a productive member of society. There is no evidence of criminal intent in his possession of this weapon and his desire for protection in his business neighborhood is justified.”
No one can sustain this defendant, or any person, in the illegal possession of a loaded firearm. It is a clear violation of law and calls for an appropriate sanction and penalty. But under the clear and compelling circumstances here present, is it appropriate or fair or just to send this first offender off to jail for 30 days, 10 days or even one day? To *93me, such a sentence based upon these facts is cruel and harsh and borders on the obscene.
It is beyond cavil that violent crime is ever on the increase and that it is, in all its terrifying aspects, continuously creating conditions of unspeakable horror on the streets of our cities. Out of these jungle conditions in crescendo fashion, the cry of an aroused and frightened public is heard demanding, with good reason, swift and effective measures to contain and to curtail the monstrous abominations which are daily visited upon them. The fire is fueled by those who should and do know better but who, seizing upon a popular theme, pick up the cry and, by some total distortion of reason, imply that the fault lies with the judiciary and suggest that tougher and longer prison sentences are the solution. The Legislature responds by passing more and more mandatory sentencing laws and the press and other news media not infrequently give at least tacit approval to such measures. And all the time, Judges sitting in the eye of the storm, know that the catastrophic rise in crime bespeaks a failure not alone of society, but of the family, the church, the schools, the home and of the economic and political structure of the State itself. We know, too, that there are as many reasons for crime as there are people who commit it and we have long since learned that there is no simple solution or ready answer to the problem. I have previously expressed my disapproval of mandatory sentences4 because of a firmly held opinion that mandatory sentences give to a worried and frightened public the illusion of protection, that they do not deter the criminal and, worst of all, that they incapacitate a major section of the system of criminal justice in denying discretion to the courts. Are we really ready to give up on the theory that the punishment fit the crime?
To the issue before us — to tack on an additional jail sentence for the possession and/or use of the gun, loaded or unloaded, in or about the commission of a crime, makes much sense and may even be effective. However, to send an otherwise law-abiding citizen to jail on his first offense under the facts of this case makes no sense, accomplishes no good and creates nothing but untoward hardship and *94bitterness. I respectfully dissent and would modify the sentence by striking the 30-day period of incarceration.
Thompson and Niehoff, JJ., concur with Lazer, J. P.; O’Connor, J., dissents and votes to modify the sentence by deleting the period of incarceration, with an opinion.
Appeal by defendant, as limited by his motion, from a sentence of the County Court, Nassau County, imposed June 16, 1981.
Sentence affirmed.
This case is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (subd 5).
. New York Times, Aug. 16, 1982, IV, p 11, col 4.
. See People v Yocus, 79 AD2d 1037, 1038 (O’Connor, J., dissenting).
. A clear indication of the utter futility of it all! Is it not by now abundantly clear that the answer to crime lies not in sterner and tougher sentences?
. People v Yocus, 79 AD2d 1037, 1038-1040.