Opinion
June 16, 1988
Appeal from the Supreme Court, New York County (Jerome Hornblass, J.).
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 "[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." 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 A.D.2d 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.