People v. Appel

141 A.D.2d 374, 529 N.Y.S.2d 311, 1988 N.Y. App. Div. LEXIS 6662

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 1988
• Status: Published

Opinion

Judgments, Supreme Court, New York County (Jerome Hornblass, J.), rendered October 28, 1986, convicting both defendants of assault in the second degree, sentencing each defendant to a definite 60-day jail term, imposing a period of probation of 4 years and 10 months, and ordering each defendant to donate $1,000 to a shelter for battered women, unanimously modified, on the law, by vacating the direction pertaining to monetary payment, and otherwise affirmed. The matter is remitted to the Supreme Court, New York County, for surrender and resentencing in accordance herewith.

To the extent that the sentences imposed a mandatory donation to a women’s shelter, they were illegal. True, as argued by the People, Penal Law § 65.10 (2) (g) provides that, as a condition of probation, a defendant may be required to "[mjake restitution of the fruits of his offense or make reparation, in an amount he can afford to pay, for the loss or damage caused thereby.” However, this mandated payment to a women’s shelter, which was not itself the victim of the assaultive behavior, constituted a condition unauthorized by law, and it cannot be upheld either as a fine, or restitution, or reparation (People v White, 119 AD2d 708). Furthermore, the amount imposed as restitution ($1,000 each) was not based, as required by the statute, on any judicial finding that such sum was either the actual amount of the fruits of the crime or a portion thereof, and that each defendant could afford to pay it.

We have examined the other points raised by appellants and find them without merit.

Accordingly, we annul the monetary portion of both sentences and remand for surrender and resentencing. Concur— Sandler, J. P., Kassal, Ellerin, Wallach and Smith, JJ.