People v. Gahrey M. O.

231 A.D.2d 909, 647 N.Y.S.2d 626, 1996 N.Y. App. Div. LEXIS 10777

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 1996
• Status: Published

Opinion

Adjudication unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: We reject the contention of defendant that County Court erred in imposing restitution without conducting an evidentiary hearing regarding the victim’s actual out-of-pocket losses and defendant’s ability to pay. Defendant never requested a hearing and the record contains sufficient evidence to support the court’s finding that the victim’s actual out-of-pocket loss consisting of unreimbursed medical expenses is $11,000 (see, Penal Law § 60.27 [2]).

Defendant further contends that the court erred in imposing a surcharge of 10% of the amount of total restitution ordered rather than the surcharge of 5% that is directed by Penal Law § 60.27 (8). We agree. An additional surcharge of 5% is authorized only "[u]pon the filing of an affidavit of the official or organization designated pursuant to [CPL 420.10 (8)] demonstrating that the actual cost of the collection and administration of restitution * * * in a particular case exceeds five percent of the entire amount of the payment” (Penal Law § 60.27 [8]). Here, the record does not contain such an affidavit, and there is no showing or assertion that one was filed. Thus, the imposition of the additional 5% surcharge was not authorized. The fact that defendant agreed to the amount of the restitution and additional surcharge as a part of his plea agreement "is of no moment. A defendant cannot be deemed to have waived his right to be sentenced as provided by law” (People v Watson, 197 AD2d 880). Therefore, we modify the adjudication by vacating that part of defendant’s sentence ordering defendant to pay an additional 5% surcharge in addition to the 5% surcharge directed by Penal Law § 60.27 (8). (Appeal from Adjudication of Ontario County Court, Harvey, J.—Youthful Offender.) Present—Pine, J. P., Lawton, Fallon, Balio and Davis, JJ.