People v. Worthington

173 A.D.2d 665

Opinion

Appeal by the defendant, as limited by his motion, from so much of a sentence of the County Court, Suffolk County (Mallon, J.), imposed June 25, 1990, as, upon sentencing him to a term of five years probation, upon his conviction of attempted burglary in the second degree, upon his plea of guilty, denied youthful offender treatment, required him to make restitution in the amount of $184.80, and imposed a mandatory surcharge.

Ordered that the sentence is modified, on the law, by deleting the provision thereof requiring the defendant to make restitution; as so modified, the sentence is affirmed insofar as appealed from.

Inasmuch as restitution did not comprise part of the defendant’s plea agreement (see, People v Cowan, 168 AD2d 509), and there is inadequate evidence in the record to support the sentencing court’s imposition of restitution, we conclude that the portion of the sentence directing the payment of restitution should be deleted (see, Penal Law § 60.27 [2]; People v Smith, 168 AD2d 524).

We reject the defendant’s remaining contentions. His challenge to the payment of the mandatory surcharge is academic in view of the foregoing determination (see, Penal Law § 60.35 [6]), and the sentencing court’s denial of youthful offender treatment did not constitute an improvident exercise of discretion under the circumstances presented (see, CPL 720.20 [1] [a]). Mangano, P. J., Bracken, Sullivan, Balletta and O’Brien, JJ., concur.