People v. Waits

226 A.D.2d 568, 641 N.Y.S.2d 101, 1996 N.Y. App. Div. LEXIS 4406

Opinion

Appeal by the defendant, as limited by his brief, from (1) a sentence of the County Court, Orange County (Berry, J.), imposed May 15, 1995, under S.C.I. No. 95-00145, upon his conviction of criminal possession of stolen property in the third degree, upon his plea of guilty, the sentence being 3 to 6 years imprisonment, restitution, a mandatory surcharge of $150, and a crime victim’s assistance fee of $5 and (2) an amended sentence of the same court, imposed May 18, 1995, under S.C.I. No. 94-00142, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated the conditions thereof, upon his admission, and imposing a sentence of V-h to 4 years imprisonment, restitution, and a surcharge of 5%, upon his previous conviction of criminal possession of stolen property in the fourth degree.

Ordered that the sentence is modified, on the law, by deleting the provisions thereof which require the defendant to pay a mandatory surcharge of $150 and a crime victim’s assistance fee of $5; as so modified, the sentence is affirmed; and it is further,

Ordered that the amended sentence is affirmed.

With respect to the amended sentence imposed under S.C.I. No. 94-00142, the court properly directed the defendant to pay a surcharge of 5% of the amount of restitution (see, Penal Law § 60.27 [8]). However, with respect to the sentence imposed under S.C.I. No. 95-00145, the court erred by directing the defendant to pay restitution, a mandatory surcharge, and a crime victim’s assistance fee (see, Penal Law § 60.35 [6]; People v Bailey, 209 AD2d 709).

The defendant’s remaining contention is without merit (see, People v Moore, 176 AD2d 968). Sullivan, J. P., Copertino, Santucci and Goldstein, JJ., concur.