Appeal from a judgment of the Allegany County Court (Thomas
P. Brown, J.), rendered April 23, 2015. The judgment convicted defendant, upon
his plea of guilty, of grand larceny in the third degree, criminal possession
of a controlled substance in the seventh degree and conspiracy in the fifth
degree. It is hereby ORDERED that the judgment so appealed from is unanimously
modified as a matter of discretion in the interest of justice and on the law by
reducing the surcharge to 5% of the amount of restitution and as modified the
judgment is affirmed.
Memorandum: On appeal from a judgment convicting him upon
his plea of guilty of, inter alia, grand larceny in the third degree (Penal Law
§ 155.35), defendant contends only that County Court erred in assessing a 10%
restitution collection surcharge pursuant to Penal Law § 60.27 (8). Although
defendant’s contention is unpreserved for our review (see People v Parker, 137
AD3d 1625, 1626; People v Kirkland, 105 AD3d 1337, 1338, lv denied 21 NY3d
1043), we note that the People do not contest defendant’s assertion that the
People failed to file the requisite affidavit from an official listed in CPL
420.10 (8) (see Parker, 137 AD3d at 1626-1627; People v Huddleston, 134 AD3d 1458,
1459, lv denied 27 NY3d 966; People v Perez, 130 AD3d 1496, 1497). We exercise
our power to review the issue as a matter of discretion in the interest of
justice, and we modify the judgment by reducing the surcharge from 10% to 5% of
the amount of the ordered restitution (see Parker, 137 AD3d at 1627;
Huddleston, 134 AD3d at 1459; Perez, 130 AD3d at 1497).
Entered: April 28, 2017
Frances E. Cafarell
Clerk of the Court
