| People v Lagasse |
| 2009 NY Slip Op 09804 [68 AD3d 1718] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Preston M.Lagasse, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered April18, 2008. The judgment convicted defendant, upon his plea of guilty, of criminal possession of aforged instrument in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reducing the surcharge to 5% of the amount of restitution ordered and as modified thejudgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a forged instrument in the second degree (Penal Law § 170.25). Wereject the contention of defendant that he was not eligible for the initial period of interimprobation supervision imposed by County Court (see CPL 390.30 [6]), inasmuch as hewas a second felony offender. At the time of the entry of the plea, the court had not "found,pursuant to the provisions of the criminal procedure law," that defendant was a second felonyoffender (Penal Law § 70.06 [2]).
Contrary to defendant's further contention, the court did not err in calculating the amount ofrestitution. That amount was a condition of the plea bargain, and defendant specifically agreed tothat amount during the plea allocution (see People v Hannan, 303 AD2d 765 [2003]). Asthe People correctly concede, however, the court erred in imposing a 10% surcharge on theamount of restitution ordered and instead should have imposed a surcharge of 5% (seePenal Law § 60.27 [8]; People v Viehdeffer, 288 AD2d 860 [2001]), and wetherefore modify the judgment accordingly. Finally, we reject defendant's challenge to theseverity of the sentence. Present—Hurlbutt, J.P., Peradotto, Carni, Pine and Gorski, JJ.