Both sides appealed to our court. The People urged that the defendants should be resentenced before a different Judge, and the defendants argued that the sentences were legal and should be reinstated. We affirmed, without opinion ( 33 N.Y.2d 621). When the defendants appeared for resentence on March 24, 1974, the prosecutor completely abandoned the demand for a hearing or a determination as to the amount of the defendants' gain.

The Penal Law provides that a fine of up to $5,000 or "double the amount of the defendant's gain from the commission of the crime" may be imposed upon conviction of a felony (see, Penal Law § 80.00). In order to impose a fine of double the gain, the court must make a specific finding of the amount of the gain (see, Penal Law § 80.00; People v. Neiss, 73 A.D.2d 938; People v. Williams, 46 A.D.2d 693; People v. Yannicelli, 40 A.D.2d 564, affd 33 N.Y.2d 621). Here, the court simply announced that "the Defendant is fined the amount of $268,112, which is twice the established gain, if equally allocated between the defendant and one Gerald Clifton". Although the better practice would have been to explain the derivation of that figure, its source is readily apparent and available for our review, and therefore the court's failure to elucidate is not by itself a basis for reversal.

The sentences originally imposed upon defendants, and thereafter completely executed, called for a fine and a short definite prison term. On appeal by the People, we reversed and remanded the cases to the County Court for the purpose of resentencing, holding that the sentences "were invalid as a matter of law, because of failure to comply with section 80.00 Penal of the Penal Law, since the sentencing court made no findings as to the amount of the gain of these defendants from the crime" (People v Yannicelli, 40 A.D.2d 564, 565, affd 33 N.Y.2d 621). On resentencing, the County Court remitted the fines, but imposed longer definite prison terms, with credit for time served. On this record, the constitutional guarantee against double jeopardy prevents imposition of an increased term of imprisonment (Sullens v United States, 409 F.2d 545; North Carolina v Pearce, 395 U.S. 711, 717; United States v Benz, 282 U.S. 304, 307; Matter of Lange, 85 U.S. 163; cf. Bozza v United States, 330 U.S. 160; United States v Richardson, 498 F.2d 9). Even where the second sentence imposed follows a successful appeal by the defendant, due process requires that a longer term of imprisonment be justified by conduct on the part of the defendant occurring after the time of the original sentencing (People v Williams, 34 N.Y.2d 657; North Carolina v Pearce, supra, 395 U.S. 711, 726). That the additional time in prison is justified by the rescission of the fines is scarcely arguable (Burton v Goodlett, 480 F.2d 983; Argersinger v Hamlin, 407 U.S. 25).

Appeal by defendant, as limited by his brief, from so much of a sentence of the Supreme Court, Suffolk County, rendered January 21, 1974, as imposed a fine upon him of $1,000, payable within one year, upon a conviction of attempted robbery in the third degree, on a guilty plea. Sentence reversed insofar as appealed from, on the law. The sentence was invalid, as a matter of law, for failure to comply with section 80.00 Penal of the Penal Law, which requires inter alia, that in order to impose a fine there must be a finding of a financial gain by the defendant from the commission of the crime (see People v. Yannicelli, 40 A.D.2d 564, affd. 33 N.Y.2d 621). No such finding was made by the sentencing court. In this determination, the District Attorney concurs. Hopkins, Acting P.J., Martuscello, Cohalan, Christ and Munder, JJ., concur.