Opinion
May 29, 1990
Appeal from the County Court, Orange County (Patsalos, J.).
Ordered that the judgment is modified, on the law, by vacating the provisions of the sentence concerning restitution; as so modified, the judgment is affirmed and the matter is remitted to the County Court, Orange County, for further proceedings pursuant to CPL 460.50 (5).
As part of the sentence of probation, the court directed the defendant to make restitution to Orange County in the amount of $3,000 plus a 5% surcharge of $150. This amount purportedly represented reimbursement to the county for the costs of the investigation and prosecution of this case by a Special Prosecutor.
Penal Law § 65.10 (2) (g) provides that, as a condition of probation, the defendant may be required to "[m]ake 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" (see also, Penal Law § 60.27). The term "restitution" has been defined as the return of all the fruits of the crime, while "reparation" refers to the return of as much as the defendant can afford (see, People v. White, 119 A.D.2d 708, 709). Both terms clearly pertain to the return of property to its owner (see, People v. White, supra). The expenditure of money by the county in prosecuting the defendant herein was part of its law enforcement operating costs, and the county does not thereby become a "victim" as used in Penal Law § 60.27 (1) (see, People v. Rowe, 152 A.D.2d 907, affd 75 N.Y.2d 948 for reasons stated at App. Div.; see also, People v. Baker, 39 Cal.App.3d 550, 113 Cal.Rptr. 248). Thus, the directive that the defendant pay a total sum of $3,150 to the county was unauthorized by the statute and must be vacated (see, People v. Rowe, supra; People v Appel, 141 A.D.2d 374; People v. White, supra).
The defendant's plea of guilty, which he does not challenge, operated as a forfeiture of his right to appellate review of the denial of that branch of his motion which sought dismissal of the indictment in the interest of justice (see, People v. Persico, 131 A.D.2d 603; People v. Guerra, 123 A.D.2d 882; People v. Macy, 100 A.D.2d 557).
We decline to disturb the remainder of the sentence since it was within the bounds of the applicable sentencing statutes and was not excessive (see, People v. Farrar, 52 N.Y.2d 302; People v Suitte, 90 A.D.2d 80). Sullivan, J.P., Harwood, Balletta and Rosenblatt, JJ., concur.