Opinion
July 27, 1992
Appeal from the Supreme Court, Nassau County (Santagata, J.).
Ordered that the sentence is modified, on the law, by vacating the provisions thereof which require the defendant to make restitution in the amount of $8,633.10 plus a 5% surcharge; as so modified, the sentence is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for a new determination as to the appropriate amount of restitution required under Penal Law § 60.27.
We find that the sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80). However, as the People concede, the court erred in allowing the probation report to be dispositive of the issue of the amount of the restitution and the manner of making restitution (see, People v. Fuller, 57 N.Y.2d 152; People v. Jones, 172 A.D.2d 693; People v. Hoffman, 159 A.D.2d 638).
The matter is therefore remitted for a hearing to determine the amount of restitution as well as the defendant's ability to pay (see, People v. Robinson, 156 A.D.2d 731). Mangano, P.J., Thompson, Lawrence, Miller and O'Brien, JJ., concur.