Opinion
March 4, 1991
Appeal from the Supreme Court, Nassau County (Santagata, J.).
Ordered that the judgment and the amended judgment are modified, on the law and as a matter of discretion in the interest of justice, by deleting the provisions thereof directing the defendant to make restitution in the amount of $1,087.16; as so modified, the judgment and amended judgment are affirmed, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and new determination concerning the proper amount of restitution and the manner of payment thereof.
In ordering restitution, a court may use the Probation Department as a preliminary fact finder, but "in the last analysis it is for the court alone to impose the sentence and to fix the amount of restitution and the manner of performance" (People v Bowden, 131 A.D.2d 581, 582; see also, People v Fuller, 57 N.Y.2d 152; People v Gudat, 155 A.D.2d 554). Here, by allowing the probation report to be dispositive of the proper measure of restitution and failing to make an independent judicial finding as to the loss, the trial court erred (see, Penal Law § 60.27). Furthermore, the court also erred in failing to inquire whether the defendant had the means to pay the amount in issue (see, People v Barnes, 135 A.D.2d 825). Bracken, J.P., Kooper, Lawrence, Balletta and O'Brien, JJ., concur.