People v. Gonzalez

Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Nassau County (Wexner, J.), imposed January 17, 1989, upon his conviction of attempted criminal sale of a controlled substance in the first degree, after a plea of guilty, the sentence being a term of imprisonment plus restitution in the amount of $1,650.

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

Upon his plea of guilty to one count of attempted criminal sale of a controlled substance in the first degree, the defendant was sentenced to a term of imprisonment and was ordered to make restitution (see, Penal Law § 60.27) in the amount of $1,650, that sum representing police "buy” money handed over to the defendant during two of the sales to undercover officers upon which this prosecution was premised. *944It is now established, however, that a police department which parted with money is not a "victim” within the meaning of Penal Law § 60.27 (see, People v Rowe, 152 AD2d 907, affd 75 NY2d 948; see also, People v Purcell, 161 AD2d 812). Since the directive that the defendant pay $1,650, which the sentencing court ordered the District Attorney to collect by entry of a judgment (see, CPL 420.10 [5]) is unauthorized by statute (see, People v Purcell, supra; People v Rowe, supra), it must be vacated, notwithstanding the defendant’s failure to protest the directive at the time it was issued (see, People v Fuller, 57 NY2d 152,156; see also, People v Seaberg, 74 NY2d 1,10).

We decline to disturb the remainder of the sentence inasmuch as it was imposed pursuant to a negotiated plea and was not excessive (see, People v Kazepis, 101 AD2d 816; see also, People v Suitte, 90 AD2d 80). Bracken, J. P., Kooper, Harwood and Rosenblatt, JJ., concur.