Opinion
February 26, 1996
Appeal from the County Court, Westchester County (Colabella, J.).
Ordered that the judgment is modified, on the law, by vacating the provision thereof directing the defendant to make restitution to the City of Yonkers in the amount of $102,000, representing the salary paid to him from September 12, 1990, through January 1, 1992; as so modified, the judgment is affirmed.
The defendant is a former Commissioner of Planning and Development for the City of Yonkers. After he was convicted of charges arising from, among other things, his acceptance of bribes in connection with the awarding of municipal contracts, he entered into a cooperation agreement with the New York State Organized Crime Task Force. The record supports the conclusion that the defendant voluntarily, knowingly, and intelligently waived his right to appeal as part of that cooperation agreement, which he negotiated after his conviction (see, People v. Avery, 85 N.Y.2d 503; People v. Seaberg, 74 N.Y.2d 1).
Nonetheless, the defendant's waiver of his right to appeal does not preclude him from challenging the legality of the sentence imposed (see, People v. Allen, 86 N.Y.2d 599; People v. Callahan, 80 N.Y.2d 273, 280). The court properly ordered the defendant to make restitution to the contractor from whom he misappropriated a $3,500 check for services performed and also make restitution to the City of Yonkers for the amounts of the kickbacks he took from contractors and the amounts of the unnecessary contracts awarded by him. The record supports the court's determination of the "amount of the fruits of the offense and the actual out-of-pocket loss * * * caused by the offense" (Penal Law § 60.27). However, under the circumstances, the portion of the court's restitution order requiring the defendant to return the entire salary paid to him by his employer, the City of Yonkers, during his tenure as acting Commissioner and then Commissioner of Planning and Development, must be set aside as it is not authorized by the statute (see, People v. Lopez, 162 A.D.2d 621). O'Brien, J.P., Copertino, Santucci and Krausman, JJ., concur.