D was arrested for the unauthorized use of a motor vehicle. D was found to possess a loaded Sterling .25 caliber automatic pistol. D had registered the gun in North Carolina when he acquired it there in 1973. D carried it unlicensed in New York for the seven and one-half year period preceding his arrest. D is 46 years old, has been married for 25 years, and has two children, aged 14 and 21 years. He has never before been convicted of a crime. D admits he was aware of New York's gun licensing requirement. D claims that the gun was necessary for protection because the tailor shop he operates is located in a high crime area of The Bronx. D was charged with the class D felony of criminal possession of a weapon in the third degree. D pled to the misdemeanor of possession in the fourth degree. Under a new gun statute with its mandatory one-year imprisonment provision, the sentencing Judge found the mandatory one-year jail provision too severe. The judge imposed a jail sentence of 30 days plus three years' probation. D appealed.

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