People v. Demers

Appellate Division of the Supreme Court of New York

People v. Demers

298 A.D.2d 769, 748 N.Y.S.2d 705, 2002 N.Y. App. Div. LEXIS 10333

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 31, 2002

StatusPublished

This text of 298 A.D.2d 769 (People v. Demers) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Demers, 298 A.D.2d 769, 748 N.Y.S.2d 705, 2002 N.Y. App. Div. LEXIS 10333 (N.Y. Ct. App. 2002).

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Opinion

Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), rendered April 23, 2001, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.

Defendant pleaded guilty to the crime of grand larceny in the fourth degree and was sentenced as a second felony offender to a prison term of IV2 to 3 years. In addition, defendant was ordered to pay restitution totaling $1,873.28 plus a 10% collection surcharge for a total of $2,060.60. Defendant appeals, contending that County Court erred in imposing a surcharge of 10% of the amount of restitution ordered. A review of the record confirms the People’s concession that due to an absence of an affidavit indicating that the actual cost of collection exceeded 5%, a collection surcharge of 10% was in error [770]*770(see Penal Law § 60.27 [8]). Accordingly, the surcharge should be reduced to 5% of the restitution amount (see People v Rawdon, 296 AD2d 599; People v Arquette, 281 AD2d 652).

Mercure, J.P., Crew III, Peters, Rose and Kane, JJ., concur. Ordered that the judgment is modified, on the law, by deleting so much thereof as imposed a 10% collection surcharge on the $1,873.28 amount of restitution; collection surcharge reduced to 5% of the amount of restitution actually collected; and, as so modified, affirmed.

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Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), rendered April 23, 2001, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.

Defendant pleaded guilty to the crime of grand larceny in the fourth degree and was sentenced as a second felony offender to a prison term of IV2 to 3 years. In addition, defendant was ordered to pay restitution totaling $1,873.28 plus a 10% collection surcharge for a total of $2,060.60. Defendant appeals, contending that County Court erred in imposing a surcharge of 10% of the amount of restitution ordered. A review of the record confirms the People’s concession that due to an absence of an affidavit indicating that the actual cost of collection exceeded 5%, a collection surcharge of 10% was in error [770]*770(see Penal Law § 60.27 [8]). Accordingly, the surcharge should be reduced to 5% of the restitution amount (see People v Rawdon, 296 AD2d 599; People v Arquette, 281 AD2d 652).

Mercure, J.P., Crew III, Peters, Rose and Kane, JJ., concur. Ordered that the judgment is modified, on the law, by deleting so much thereof as imposed a 10% collection surcharge on the $1,873.28 amount of restitution; collection surcharge reduced to 5% of the amount of restitution actually collected; and, as so modified, affirmed.

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Bluebook (online)

298 A.D.2d 769, 748 N.Y.S.2d 705, 2002 N.Y. App. Div. LEXIS 10333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-demers-nyappdiv-2002.

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