| People v Perez |
| 2015 NY Slip Op 05843 [130 AD3d 1496] |
| July 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDavid J. Perez, Appellant. (Appeal No. 1.) |
Leanne Lapp, Public Defender, Canandaigua (Mary P. Davison of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Jason A. Macbride of counsel),for respondent.
Appeal from an order of the Ontario County Court (Craig J. Doran, J.), datedNovember 1, 2013. The order directed defendant to pay certain restitution.
It is hereby ordered that the order so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reducing the surcharge to5% of the amount of restitution and as modified the order is affirmed.
Memorandum: In appeal No. 1, defendant appeals from an order directing him to payrestitution and, in appeal No. 2, he appeals from an amended order that corrected atypographical error in the order in appeal No. 1. We note at the outset that the appealfrom the amended order must be dismissed because the amended order did not effect a"material or substantial change" to the order in appeal No. 1 (Matter of Kolasz vLevitt, 63 AD2d 777, 779 [1978]). We also note that, as defendant contends and thePeople correctly concede, County Court failed to conduct an adequate colloquy withrespect to the waiver of the right to appeal, rendering that waiver invalid (see generally People v Lopez,6 NY3d 248, 256 [2006]).
On the merits, we reject defendant's contention that the evidence at the restitutionhearing was insufficient to support the amount of restitution ordered. The People mettheir burden of establishing the amount of restitution by a preponderance of the evidencethrough, inter alia, the victims' testimony, which the court found to be credible (seeCPL 400.30 [4]; People vTzitzikalakis, 8 NY3d 217, 221-222 [2007]; People v Wilson, 108 AD3d 1011, 1013-1014 [2013]).Although defendant asserts that the victims were lying about the amount of money thatwas stolen from them, we perceive no basis in the record for us to substitute ourcredibility determinations for those of the court, which had "the advantage of observingthe witnesses and [was] in a better position to judge veracity than an appellate court"(People v Dolan, 155 AD2d 867, 868 [1989], lv denied 75 NY2d 812[1990]).
As the People again correctly concede, however, the court erred in imposing asurcharge of 10% of the total amount of the restitution ordered instead of the 5%surcharge directed by Penal Law § 60.27 (8). Although defendant failed topreserve his contention for our review, we exercise our power to review it as a matter ofdiscretion in the interest of justice (cf. People v Kirkland, 105 AD3d 1337, 1338-1339 [2013],lv denied 21 NY3d 1043 [2013]), and we modify the order in appeal No. 1accordingly. The additional surcharge was not authorized because there was no "filing ofan 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 [this] case exceeds five percent of the entire amount of the paymentor the amount actually collected" (Penal Law § 60.27 [8]; see People v Stachnik, 101AD3d 1590, 1592 [2012], lv denied 20 NY3d 1104 [2013]).Present—Centra, J.P., Lindley, Sconiers, Whalen and DeJoseph, JJ.