People v. Lagasse

Memorandum: 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 [6]), 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 [2]). 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 [2003]). 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 [8]; People v Viehdeffer, 288 AD2d 860 [2001]), and we therefore modify the judgment accordingly. Finally, we reject defendant’s challenge to the severity of the sentence. Present — Hurlbutt, J.E, Peradotto, Carni, Pine and Gorski, JJ.