Opinion
April 8, 1991
Appeal from the County Court, Westchester County (Silverman, J.).
Ordered that the sentence is reversed insofar as appealed from, on the law and as a matter of discretion in the interest of justice, the requirement that the defendant pay a surcharge is deleted, and the matter is remitted to the County Court, Westchester County, for a new hearing and determination concerning the amount of restitution and the manner of payment.
The defendant was afforded what purported to be a hearing on the amount of restitution to be made to the insurer of the stolen vehicle he illegally possessed (see, Penal Law § 60.27; see also, People v. Chery, 126 A.D.2d 659). However, the colloquy between the court and counsel and a review of an insurance company bill concerning the cost of a variety of repairs which the defendant did not concede warranted restitution and for which the court did not determine responsibility did not satisfy the requirement that the court conduct a hearing and determine the amount of the loss and the manner of payment (Penal Law § 60.27; cf., CPL 400.30). There is, in any event, insufficient information in the hearing record regarding the manner in which the sentencing court ascertained the amount of restitution (see, People v. Collins, 163 A.D.2d 608; People v. Walker, 140 A.D.2d 655; cf., People v. Kade, 153 A.D.2d 907).
We reject the defendant's contention that the People are barred from again attempting to establish the amount of damage caused by the offense (see, Penal Law § 60.27; cf., CPL 400.30; People v. Sailor, 65 N.Y.2d 224; People v. Havelka, 45 N.Y.2d 636, 641-644). A new hearing and determination as to the amount of restitution to be made to the insurer is required. The defendant may at that time raise the issue of his financial inability to make restitution (cf., CPL 420.10). Moreover, we agree with the defendant that it was error for the court to direct him to both make restitution and pay a surcharge (see, Penal Law § 60.35), since the two directives are inconsistent with each other (see, People v. Willis, 168 A.D.2d 470; People v. Turco, 130 A.D.2d 785, 788). Mangano, P.J., Kunzeman, Eiber, Harwood and Rosenblatt, JJ., concur.