Opinion
December 2, 1993
Appeal from the County Court of Franklin County (Main, Jr., J.).
Defendant asserts that County Court failed to conform to Penal Law § 60.27 in requiring defendant to make restitution. We agree. County Court simply accepted the amounts of damage contained in the probation report, which were based upon statements made to the probation officer by the victim and a representative of the insurance carrier that paid the victim for her loss, less a deductible amount. While the probation officer apparently had access to proofs of loss, the record does not reflect that County Court was privy to such material and the court made no finding as to the loss or damage caused by the offense (see, People v Ashley, 162 A.D.2d 883, lv denied 76 N.Y.2d 852; see also, Penal Law § 60.27). Additionally, there is no evidence that defendant's financial situation was considered in determining restitution (see, People v Robinson, 174 A.D.2d 779). Accordingly, remittal is required for a hearing to determine the amount of damage or loss, defendant's financial condition, the appropriate amount of restitution and a payment schedule (see, People v Landes, 192 A.D.2d 1, 6).
Weiss, P.J., Yesawich Jr., White and Casey, JJ., concur. Ordered that the judgment is modified, on the law, by vacating that portion of the sentence which directed restitution; matter remitted to the County Court of Franklin County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.