People v. Dehlow

173 A.D.2d 553

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1991
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Baker, J.), rendered December 6, 1989, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating so much of the sentence as directed the defendant to pay restitution; as so modified, the judgment is affirmed.

As part of his plea bargain, the defendant expressly agreed to waive his right to appeal the length of his sentence, thereby precluding him from raising an excessive sentence argument before this court (see, People v Seaberg, 74 NY2d 1). In any event, we do not find that the term of incarceration imposed was harsh or excessive (see, People v Suitte, 90 AD2d 80).

However, as conceded by the People, the trial court erred in directing the defendant to pay restitution in the sum of $1,560, representing unrecovered "buy money” used by the police in the drug sale which formed the basis of the conviction (see, People v Rowe, 152 AD2d 907, affd 75 NY2d 948). Accordingly, that part of the sentence is vacated. Bracken, J. P., Kooper, Lawrence, Balletta and O’Brien, JJ., concur.