Opinion
January 25, 1988
Appeal from the County Court, Suffolk County (Mallon, J.).
Ordered that the judgment is modified, on the law, by deleting the provision thereof imposing a mandatory surcharge of $75. As so modified, the judgment is affirmed. The defendant may make an application to the County Court, Suffolk County, for a refund of the $75, and upon proof that payment has been made, his application shall be granted.
We find that the evidence, when viewed in the light most favorable to the People, was legally sufficient to support the defendant's conviction on the charge of burglary in the third degree (see, People v Haile, 128 A.D.2d 891; People v Swain, 126 A.D.2d 763, lv denied 69 N.Y.2d 886; cf., People v Mackey, 49 N.Y.2d 274, 279-280).
However, the sentencing court erred in imposing a mandatory surcharge in addition to restitution (see, Penal Law § 60.35; People v DeVita, 132 A.D.2d 616; People v Neff, 110 A.D.2d 721; but see, People v De Berry, 117 A.D.2d 1006 ). Since the defendant has made restitution, he is entitled to a refund of the mandatory surcharge upon proof of payment. Mollen, P.J., Thompson, Lawrence and Eiber, JJ., concur.