Opinion
13323
Decided and Entered: October 31, 2002.
Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), rendered April 23, 2001, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.
Richard V. Manning, Parishville, for appellant.
Derek P. Champagne, District Attorney, Malone (Andrew G. Schrader of counsel), for respondent.
Before: Mercure, J.P., Crew III, Peters, Rose and Kane, JJ.
MEMORANDUM AND ORDER
Defendant pleaded guilty to the crime of grand larceny in the fourth degree and was sentenced as a second felony offender to a prison term of 1½ to 3 years. In addition, defendant was ordered to pay restitution totaling $1,873.28 plus a 10% collection surcharge for a total of $2,060.60. Defendant appeals, contending that County Court erred in imposing a surcharge of 10% of the amount of restitution ordered. A review of the record confirms the People's concession that due to an absence of an affidavit indicating that the actual cost of collection exceeded 5%, a collection surcharge of 10% was in error (see Penal Law § 60.27). Accordingly, the surcharge should be reduced to 5% of the restitution amount (see People v. Rawdon, 296 A.D.2d 599; People v. Arquette, 281 A.D.2d 652).
Mercure, J.P., Crew III, Peters, Rose and Kane, JJ., concur.
ORDERED that the judgment is modified, on the law, by deleting so much thereof as imposed a 10% collection surcharge on the $1,873.28 amount of restitution; collection surcharge reduced to 5% of the amount of restitution actually collected; and, as so modified, affirmed.