People v. Giovannotto

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Nassau County (Santagata, J.), imposed June 13, 1990, the sentence being a determinate term of one year imprison 362 ment to run concurrently to an indeterminate term of ÍVz to 4 years imprisonment, a $500 fine, and $8,633.10 in restitution plus a 5% surcharge upon his conviction of operating a motor vehicle while under the influence of alcohol as a misdemeanor, and leaving the scene of an accident without reporting, after a plea of guilty. Ordered that the sentence is modified, on the law, by vacating the provisions thereof which require the defendant to make restitution in the amount of $8,633.10 plus a 5% surcharge; as so modified, the sentence is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for a new determination as to the appropriate amount of restitution required under Penal Law § 60.27. We find that the sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). However, as the People concede, the court erred in allowing the probation report to be dispositive of the issue of the amount of the restitution and the manner of making restitution (see, People v Fuller, 57 NY2d 152; People v Jones, 172 AD2d 693; People v Hoffman, 159 AD2d 638). The matter is therefore remitted for a hearing to determine the amount of restitution as well as the defendant’s ability to pay (see, People v Robinson, 156 AD2d 731). Mangano, P. J., Thompson, Lawrence, Miller and O’Brien, JJ., concur.