Opinion
January 29, 1996
Appeal from the County Court, Putnam County (Braatz, J.).
Ordered that the judgment is modified, on the law, by deleting the provisions thereof directing the payments of a mandatory surcharge in the sum of $150 and restitution in the sum of $2,000; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Putnam County, for a hearing and new determination concerning the proper amount of restitution and the manner of payment thereof.
We find no basis to disturb the hearing court's determination that the defendant's oral and written statements to the police were voluntary, that the defendant never verbalized to investigators his desire for the assistance of counsel, that he freely and voluntarily waived his right to remain silent and his right to counsel, and that he consented to the polygraph examination ( see, People v Prochilo, 41 N.Y.2d 759; People v Tarsia, 50 N.Y.2d 1, 11; People v Deskovic, 201 A.D.2d 579, 580; People v Fisch, 175 A.D.2d 926, 927; People v Glasper, 160 A.D.2d 723; People v Henry, 132 A.D.2d 673, 675; People v Clow, 62 A.D.2d 880, 883).
Viewing the evidence in the light most favorable to the prosecution ( see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).
The defendant's sentence is neither harsh nor excessive ( see, People v Suitte, 90 A.D.2d 80). Nonetheless, the imposition of both a mandatory surcharge in the sum of $150 and restitution in the sum of $2,000 was improper ( see, Penal Law § 60.35; People v Bailey, 209 A.D.2d 709; People v Burton, 194 A.D.2d 683, 684; People v Turco, 130 A.D.2d 785, 786). Furthermore, since the award of restitution was apparently based upon a claim filed by the victim's father with the Crime Assistance Board, but the basis of the claim is not in the record, the matter is remitted to the County Court for a hearing on this issue ( see, Penal Law § 60.27; People v Spry, 214 A.D.2d 771; People v Vella, 176 A.D.2d 768; People v Kirkwood, 165 A.D.2d 881, 882; People v Dixon, 134 A.D.2d 877).
The defendant's remaining contentions are either unpreserved for appellate review ( see, CPL 470.05), without merit, or do not warrant reversal in light of the overwhelming evidence of his guilt ( see, People v Crimmins, 36 N.Y.2d 230). Rosenblatt, J.P., O'Brien, Pizzuto and Goldstein, JJ., concur.