People v. Arquette

Mar 1, 2001
Versions:281 A.D.2d 652
720 N.Y.S.2d 852
2001 N.Y. App. Div. LEXIS 2041

—Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), rendered March 6, 2000, convicting defendant upon his plea of guilty of the crime of criminal mischief in the third degree.

Defendant pleaded guilty to the crime of criminal mischief in the third degree in full satisfaction of a 12-count superior court information and was thereafter sentenced to an indeterminate term of 1 to 3 years in prison. In addition, County Court imposed restitution in the agreed upon amount of $8,371.51 plus a 10% collection surcharge for a total of $9,208.66. Defendant appeals.

Initially, we reject defendant’s assertion that his prison sentence is harsh and excessive and should be reduced in the interest of justice. A sentence within the permissible statutory range will not be disturbed unless extraordinary circumstances exist warranting a modification in the interest of justice (see, People v Dolphy, 257 AD2d 681, 685, lv denied 93 NY2d 872). Here, given defendant’s extensive criminal record and the details contained in the record, we find no reason to disturb the sentence (see, People v Spencer, 272 AD2d 682, 685, lv denied 95 NY2d 858).

We do find merit, however, in defendant’s argument that the *653collection surcharge imposed on the amount of restitution was improperly calculated. The People concede, and our review of the record confirms, that County Court erred in imposing a collection surcharge of 10% upon the amount of restitution in the absence of an affidavit indicating that the actual cost of collection exceeded 5% (see, Penal Law § 60.27 [8]). Accordingly, the surcharge should be reduced to 5% of the amount of restitution actually collected (see, id.).

Mercure, J. P., Crew III, Carpinello, Mugglin and Rose, JJ., concur. Ordered that the judgment is modified, on the law, by deleting so much thereof as imposed a 10% collection surcharge on the $8,371.51 amount of restitution; collection surcharge reduced to 5% of the amount of restitution actually collected; and, as so modified, affirmed.