Opinion
04-28-2017
The PEOPLE of the State of New York, Respondent, v. Claudie V. GOODENOW, Jr., Defendant–Appellant.
Cara A. Waldman, Fairport, for defendant-appellant.
Cara A. Waldman, Fairport, for defendant-appellant.
MEMORANDUM: On appeal from a judgment convicting him upon his plea of guilty of, inter alia, grand larceny in the third degree (Penal Law § 155.35 ), defendant contends only that County Court erred in assessing a 10% restitution collection surcharge pursuant to Penal Law § 60.27(8). Although defendant's contention is unpreserved for our review (see People v. Parker, 137 A.D.3d 1625, 1626, 27 N.Y.S.3d 305 ; People v. Kirkland, 105 A.D.3d 1337, 1338, 963 N.Y.S.2d 793, lv. denied 21 N.Y.3d 1043, 972 N.Y.S.2d 540, 995 N.E.2d 856 ), we note that the People do not contest defendant's assertion that the People failed to file the requisite affidavit from an official listed in CPL 420.10(8) (see Parker, 137 A.D.3d at 1626–1627, 27 N.Y.S.3d 305; People v. Huddleston, 134 A.D.3d 1458, 1459, 21 N.Y.S.3d 796, lv. denied 27 N.Y.3d 966, 36 N.Y.S.3d 627, 56 N.E.3d 907 ; People v. Perez, 130 A.D.3d 1496, 1497, 14 N.Y.S.3d 246 ). We exercise our power to review the issue as a matter of discretion in the interest of justice, and we modify the judgment by reducing the surcharge from 10% to 5% of the amount of the ordered restitution (see Parker, 137 A.D.3d at 1627, 27 N.Y.S.3d 305; Huddleston, 134 A.D.3d at 1459, 21 N.Y.S.3d 796; Perez, 130 A.D.3d at 1497, 14 N.Y.S.3d 246 ).
It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reducing the surcharge to 5% of the amount of restitution and as modified the judgment is affirmed.
WHALEN, P.J., LINDLEY, DeJOSEPH, NEMOYER, and CURRAN, JJ., concur.