People v. Lopez

• Decision Date: 04 March 1991
• Citation: 567 N.Y.S.2d 161,171 A.D.2d 694
• Parties: The PEOPLE, etc., Respondent, v. Jairo LOPEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 161

567 N.Y.S.2d 161

171 A.D.2d 694

The PEOPLE, etc., Respondent, v. Jairo LOPEZ, Appellant.

Supreme Court, Appellate Division Second Department.

March 4, 1991.

Florence M. Kerner, Huntington, for appellant.

Denis Dillon, Dist. Atty., Mineola (George Freed and Bruce E. Whitney, of counsel), for respondent.

Before THOMPSON, J.P., and KUNZEMAN, EIBER, ROSENBLATT and RITTER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant, as limited by his brief, from a sentence of the County Court, Nassau County (Thorp, J.), imposed April 26, 1989, upon his conviction of criminal sale of a controlled substance in the second degree, upon his plea of guilty, the sentence being an indeterminate term of five years to life imprisonment and $2,000 in restitution.

ORDERED that the sentence is modified, on the law, by vacating the restitution provision; as so modified, the sentence is affirmed.

The Court of Appeals has held that law enforcement officials are not entitled to restitution of "buy money" (see, People v. Rowe, 152 A.D.2d 907, 544 N.Y.S.2d 97, aff'd 75 N.Y.2d 948, 555 N.Y.S.2d 689, 554 N.E.2d 1277; see also, People v. Gonzalez, 164 A.D.2d 943, 559 N.Y.S.2d 1011; People v. Cerna, 163 A.D.2d 409, 558 N.Y.S.2d 132). Accordingly, the defendant's sentence must be modified by vacating so much of it as directed restitution of the "buy money".

As the term of incarceration imposed upon the defendant was the sentence bargained for by him and promised by the court in connection with the plea agreement, the defendant may not now be heard to complain (see, People v. Gonzalez, supra; People v. Handlin, 156 A.D.2d 380, 548 N.Y.S.2d 334; People v. Winston, 114 A.D.2d 918, 494...