Although I realize that my dissent can have no practical effect in this case, since the Court of Appeals lacks the power to review the appropriateness of a discretionary sentence (People v Speiser, 277 NY 342, 344; People v Gittelson, 18 NY2d 427), I must dissent and vote to affirm.
It is my conviction that in reviewing the propriety of the sentence imposed in a particular case, it is not the function of appellate Judges to substitute their judgment as to the propriety of the sentence for that of the Judge at Criminal Term, *286upon whom the primary sentencing responsibility rests. "[A] determination as to what constitutes an appropriate sentence is a matter resting within the sound discretion of the trial court and the sentence imposed by that court should not be reduced on appeal unless there was a clear abuse of discretion” (People v Junco, 43 AD2d 266, 268 [emphasis added], affd 35 NY2d 419, cert den 421 US 951; People v Dittmar, 41 AD2d 788). The Appellate Division, Third Department, has suggested that appellate Judges should interfere with the trial court’s exercise of discretion only under "most extraordinary circumstances” (People v Caputo, 13 AD2d 861; People v Brown, 64 AD2d 997).
The question then arises as to what criteria should be used to evaluate whether a Trial Judge has abused his discretion in imposing a particular sentence. The Special Committee on Minimum Standards for the Administration of Criminal Justice of the American Bar Association has indorsed the position taken by the English courts to the effect that appellate Judges should not "tinker” with a sentence and that it should be altered on appeal only where it is excessive to such an extent as to satisfy the appellate court that when it was imposed there was a "failure to apply the right principles” (ABA Standards Relating to Appellate Review of Sentences, Approved Draft, § 3.1, p 49). Stated another way, a sentence should be modified where it is apparent that the trial court overlooked or gave undue weight to one or more of the accepted objectives of criminal sanctions, namely: "rehabilitation of the convicted offender into a noncriminal member of society; isolation of the offender from society to prevent criminal conduct during the period of confinement; deterrence of other members of the community who might have tendencies toward criminal conduct similar to those of the offender (secondary deterrence), and deterrence of the offender himself after release; community condemnation or the reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves; and retribution or the satisfaction of the community’s emotional desire to. punish the offender.” (Note, Appellate Review of Primary Sentencing Decisions: A Connecticut Case Study, 69 Yale LJ 1453, 1455.)
The relative priority to be accorded to each of these objectives in reaching a decision as to an appropriate sentence is dependent upon the "complex human reality” of each case (see Delaney, An Appraisal of Sentencing Commission Report, *287NYU, July 30, 1979, p 1, col 2, at p 4, col 2), including the nature of the criminal acts, the life history of the defendant, and the social and historical setting of the acts.
The defendant, Dr. Anton Notey, and his two sons operated four proprietary nursing homes on Long Island and defendant was the controlling partner in two proprietary hospitals in the same area. The defendant was one of the principals in a scheme whereby some 25 firms which supplied goods and services to these institutions submitted fictitious or inflated invoices. These institutions paid the bills and the suppliers made cash "kickbacks” to Notey and his confederates in amounts ranging from 2% to 20% of the bill. During the period from 1970 to 1975, these "kickbacks” amounted to approximately $3,000,000. Many of the inflated bills were covered by Medicaid, Medicare, or private medical insurance. Notey and his accomplices saw to it that claims were made for reimbursement of the funds used to pay the fraudulent or inflated bills, resulting in the theft of some $1,250,000 from the State and insurance companies. It is not denied that this was the largest single fraud of its type perpetrated on Long Island and the second largest such fraud in the history of the State.
I now turn to a consideration of the character and health of the defendant. In his brief, much is made of defendant’s charitable endeavors and the fact that he was a "prime mover” in the establishment of several hospitals and nursing homes in Nassau and Suffolk Counties. In my opinion these activities are entitled to little favorable consideration in his behalf. As far as I am aware there is no "Robin Hood” exemption from penal sanctions. The fact that defendant stole from the State and gave to charity should avail him nothing. Similarly, his efforts at founding hospitals and nursing homes are susceptible to the interpretation that defendant was not motivated by the desire to benefit the elderly and infirm but, rather, that his object was to create a wider field for his larcenies.
There is no doubt that defendant is a very sick man. However, the medical testimony indicates that one of the major threats to his health is a diabetes condition which is much more severe than it would otherwise be because he refuses to follow a prescribed diet and is about 35 pounds overweight. At the time of sentence the County Court Judge indicated that he had conducted an investigation and found *288that our penal system operates a facility where defendant could be given a special diet and where medical care is readily available. In addition, medical furloughs may be granted so that defendant could receive treatment from Dr. Miller for his urological problems. All the medical witnesses testified that defendant’s life expectancy was between six months and two years regardless of whether he was incarcerated. Accordingly, the defendant’s contention that imprisonment would be equivalent to a "death sentence” is not completely accurate. Death comes to all men. More specifically, the question is whether incarceration would exacerbate defendant’s existing condition and accelerate his death. The County Court satisfied itself that the Department of Correctional Services has facilities to care for inmates with severe medical problems at which the atmosphere is kept at a very relaxed level. Under these circumstances, the County Court’s implicit finding that imprisonment would not accelerate defendant’s death should not be disturbed.
Finally, there are social and historical factors which are relevant to this case. It is now common knowledge that abuses in the nursing home industry were so pervasive that the Governor found it necessary to appoint a Special Prosecutor to inquire into them. Inflated bills for goods and services rendered to hospitals and nursing homes ultimately have their impact upon the sick and elderly by being passed on in the form of increased costs for patient care. To the extent that these costs are reimbursable by private insurance they cause increased premiums and where reimbursable through Medicaid, the hand of the thief reaches into the pocket of every taxpayer. In short, pernicious schemes like that of defendant and his confederates victimize not only the patients of these institutions but also every person who pays premiums for medical care insurance or taxes.
In light of the facts making up the "complex human reality” of this case as discussed above and in the majority opinion, it is clear that the objectives of rehabilitation, isolation and primary deterrence (prevention of similar conduct by the offender in the future) would not be served by a sentence of imprisonment in this case. The facts that defendant is 73 years old, that he is likely to die within the next two years because of his physical ailments, and that he has now effectively been divested of the financial control of the institutions in question indicate that he is not likely ever again to become *289involved in such a scheme. However, the objectives of secondary detterrence, community condemnation and retribution would certainly be promoted by a sentence of imprisonment and are ill served by the mere imposition of a fine and a direction that defendant make restitution. Restitution is not punishment because it simply requires the thief to return something to which he was not entitled in the first place. In addition, the imposition of $369,000 in fines on a theft of this magnitude, although certainly a form of punishment, cannot alone serve to deter others from similar conduct. The "kickbacks” involved in this scheme totaled approximately $3,000,-000 and restitution and fines reduced the unlawful gain by $1,619,000, leaving $1,381,000 in profits from this criminal venture after apprehension and conviction. It stands to reason that other persons who, like defendant, are in a position to control health care institutions will take the result of this case to mean that one can steal millions without going to jail and only be required to disgorge a fraction of the loot. The County Court was aware of this injustice and imposed a sentence of imprisonment because of it, stating: "Now, it is my purpose to see that the defendant does not profit by what he has done; that others look at the example of the defendant and profit from not repeating his transgressions”.
In the ordinary case of a theft by one individual of the property of another the objective of retribution ("the satisfaction of the community’s emotional desire to punish the offender” [note, 69 Yale LJ 1453, 1455]), is of little practical significance in imposing sentence, because the harm accrued to an individual and not to the community at large. In this case the facts are quite the opposite. As already indicated above, these larcenies had their impact in the form of higher costs for the institutionalization of the sick and elderly and in increased insurance premiums and higher taxes. The fraud was directed at the public generally and, therefore, they have a legitimate interest in having the defendant punished. Incarceration is a reasonable and appropriate response to that interest.
Finally, the accepted objectives of criminal sanctions include community condemnation, meaning the reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves. The majority opinion does not deal with this concept. Basically, the notion of imposing a meaningful sanction to vindicate societal norms stems from the fact that *290good, bad or indifferent, norms or laws are all we have to maintain an ordered society. It is important that the citizenry accept and support the law, not merely out of fear (secondary deterrence) but rather out of a genuine understanding that the law is the bulwark which preserves order. As stated by the American Bar Association’s Special Committee on Minimum Standards for the Administration of Criminal Justice: "It is clearly necessary for the law to offer the community the assurance that it is functioning in a manner which will preserve the order which is its highest objective” (ABA Standards Relating to Sentencing Alternatives and Procedures, Approved Draft, § 2.2, p 62). When the public learns that a person who committed a theft of these proportions is to go free without having spent even a day in jail for his crime, contempt and disrespect for the law and the institutions and persons responsible for enforcing it will be the inevitable result. Again, the County Court recognized the application of this salient principle to the instant case when it stated:
"Governments operate by the consent of the governed, and these governments are embodied with a requirement that they provide for the security and health of those who agree to such government, and for that purpose they enact laws designed to provide for a system of justice with the hope that peace and tranquility will reign; that people who have been endowed by their creator with certain unalienable rights will be permitted to enjoy those rights, but there is an exchange, and that exchange requires that individuals, while yielding some of their personal rights, must comply with the system of law enacted so that we might have a rule of law.
"This must be real. This must be perceived or else what results is gross disrespect for the law, for the system, for the viability of government.” (Emphasis supplied.)
These expressions constituted neither a form of patriotic hyperbole nor a pandering to public opinion. The fact is that public acceptance of the law and its institutions is what holds our society together and a healthy concern for the public’s opinion of the sentence to be imposed in a particular case is entirely justified.
Accordingly, in my opinion there is no reason to believe that the Judge at the County Court improperly found, by implication, that defendant’s death would not be hastened by incarceration in the State’s correctional facility for the sick and elderly, and it does not appear that he overlooked or gave *291undue influence to any of the recognized objectives of penal sanctions in imposing a prison term. Consequently, the sentences should be affirmed.
Hopkins, J. P., Titone and Mangano, JJ., concur in Per Curiam opinion; Damiani, J., dissents and votes to affirm the sentences insofar as appealed from, with an opinion.
Two sentences of the County Court, Suffolk County, both imposed March 19, 1979, modified, as a matter of discretion in the interest of justice, by deleting therefrom the concurrent sentences of imprisonment and substituting therefor concurrent periods of five years’ probation. As so modified, sentences affirmed insofar as appealed from and case remitted to the County Court, Suffolk County, for the imposition of appropriate conditions of probation and for further proceedings pursuant to CPL 460.50 (subd 5).