Opinion
July 8, 1991
Appeal from the County Court, Nassau County (Ain, J.).
Ordered that the sentence is modified, on the law, by vacating the provisions thereof directing the defendant to make restitution in the amount of $11,523.06 and imposing a mandatory $100 surcharge; as so modified, the sentence is affirmed, and the matter is remitted to the County Court, Nassau County, for a hearing and new determination concerning the proper amount of restitution.
Contrary to the People's contention, the record fails to establish that the defendant knowingly, intelligently and voluntarily waived his right to challenge the amount of restitution set by the sentencing court (see, People v Seaberg, 74 N.Y.2d 1; People v Bray, 154 A.D.2d 692). We find that the manner in which restitution was determined violated the defendant's right to be sentenced as provided by law (see, People v Fuller, 57 N.Y.2d 152; People v Kronenberg, 167 A.D.2d 483; People v Gudat, 155 A.D.2d 554).
Although a court may use the Probation Department as a preliminary factfinder in directing restitution, it must also require the production of competent evidence sufficient to support independent judicial findings as to the amount of the loss and as to the defendant's ability to pay the amount in issue. Here the court erred in allowing the probation report to be dispositive of the amount of restitution (see, People v Fuller, supra; People v Jones, 172 A.D.2d 693; People v Horton, 171 A.D.2d 688; People v Hoffman, 159 A.D.2d 638). The matter is therefore remitted to the County Court for a hearing to determine the proper amount of restitution, notwithstanding the defendant's failure to request a hearing at sentencing (see, People v Kronenberg, supra; People v Gudat, supra).
In addition, as the court erred in imposing a mandatory surcharge in addition to restitution, the sentence is modified accordingly (see, People v Willis, 168 A.D.2d 470; People v Turco, 130 A.D.2d 785; Penal Law § 60.35). Mangano, P.J., Bracken, Eiber, Balletta and O'Brien, JJ., concur.