Opinion
December 30, 1996.
Judgment unanimously modified on the law and as modified afiirmed and matter remitted to Seneca County Court for further proceedings in accordance with the following
Present — Pine, J.P., Lawton, Fallon, Doerr and Balio, JJ.
"We reject the contention of defendant that County Court erred in directing him to pay restitution, the mandatory surcharge and the crime victim assistance fee (see, People v Burks, 195 AD2d 1014, 1015, lv denied 82 NY2d 804; People v De Berry, 117 AD2d 1006). The People concede, however, that defendant was entitled to an offset of $100, the amount the victim received from her insurer, in calculating the amount of restitution owed the victim. Further, the court erred in directing that defendant pay a "5% or 10%" surcharge on the amount of restitution. There is no affidavit in the record supporting the imposition of a 10% surcharge on the amount of restitution ordered in this case (see, Penal Law § 60.27). Thus, we modify the judgment by vacating the direction that defendant pay restitution to the victim in the sum of $230 and a 10% surcharge on the amount of restitution, and we remit the matter to Seneca County Court for a redetermination of the amount of restitution. We note that, having reimbursed its insured to the extent of $100, the insurance company also may be considered a victim ( see, People v Hall-Wilson, 69 NY2d 154; People v Turco, 130 AD2d 785, 788, lv denied 70 NY2d 755; People v Chery, 126 AD2d 659, lv denied 69 NY2d 825). (Appeal from Judgment of Seneca County Court, Bender, J."Attempted Burglary, 2nd Degree.)