SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
December 30, 2009
THE PEOPLE OF THE STATE OF NEW YORK,
PRESTON M. LAGASSE,
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered April 18, 2008.
PRESENT: HURLBUTT, J.P., PERADOTTO, CARNI, PINE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
The judgment convicted defendant, upon his plea of guilty, of criminal possession of a forged instrument in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the surcharge to 5% of the amount of restitution ordered and as modified the judgment is affirmed.
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a forged instrument in the second degree (Penal Law § 170.25).
We reject the contention of defendant that he was not eligible for the initial period of interim probation supervision imposed by County Court (see CPL 390.30 ), inasmuch as he was a second felony offender. At the time of the entry of the plea, the court had not "found, pursuant to the provisions of the criminal procedure law," that defendant was a second felony offender (Penal Law § 70.06 ).
Contrary to defendant's further contention, the court did not err in calculating the amount of restitution.
That amount was a condition of the plea bargain, and defendant specifically agreed to that amount during the plea allocution (see People v Hannan, 303 AD2d 765). As the People correctly concede, however, the court erred in imposing a 10% surcharge on the amount of restitution ordered and instead should have imposed a surcharge of 5% (see Penal Law § 60.27 ; People v Viehdeffer, 288 AD2d 860), and we therefore modify the judgment accordingly. Finally, we reject defendant's challenge to the severity of the sentence.
Patricia L. Morgan Clerk of the Court
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