Opinion
May 20, 1991
Appeal from the County Court, Suffolk County (Mallon, J.).
Ordered that the sentence is modified, on the law, by deleting the provision thereof requiring the defendant to make restitution; as so modified, the sentence is affirmed insofar as appealed from.
Inasmuch as restitution did not comprise part of the defendant's plea agreement (see, People v Cowan, 168 A.D.2d 509), and there is inadequate evidence in the record to support the sentencing court's imposition of restitution, we conclude that the portion of the sentence directing the payment of restitution should be deleted (see, Penal Law § 60.27; People v Smith, 168 A.D.2d 524).
We reject the defendant's remaining contentions. His challenge to the payment of the mandatory surcharge is academic in view of the foregoing determination (see, Penal Law § 60.35), and the sentencing court's denial of youthful offender treatment did not constitute an improvident exercise of discretion under the circumstances presented (see, CPL 720.20 [a]). Mangano, P.J., Bracken, Sullivan, Balletta and O'Brien, JJ., concur.