Opinion
September 27, 1996.
Adjudication unanimously modified on the law and as modified affirmed in accordance with the following.
Before: Present Pine, J.P., Lawton, Fallon, Balio and Davis, JJ.
We reject the contention of defendant that County Court erred in imposing restitution without conducting an evidentiary hearing regarding the victim's actual out-of-pocket losses and defendant's ability to pay. Defendant never requested a hearing and the record contains sufficient evidence to support the court's finding that the victim's actual out-of-pocket loss consisting of un-reimbursed medical expenses is $11,000 ( see, Penal Law § 60.27).
Defendant further contends that the court erred in imposing a surcharge of 10% of the amount of total restitution ordered rather than the surcharge of 5% that is directed by Penal Law § 60.27 (8). We agree. An additional surcharge of 5% is authorized only "[u]pon the filing of an affidavit of the official or organization designated pursuant to [CPL 420.10 (8)] demonstrating that the actual cost of the collection and administration of restitution * * * in a particular case exceeds five percent of the entire amount of the payment" (Penal Law § 60.27). Here, the record does not contain such an affidavit, and there is no showing or assertion that one was filed. Thus, the imposition of the additional 5% surcharge was not authorized. The fact that defendant agreed to the amount of the restitution and additional surcharge as a part of his plea agreement "is of no moment. A defendant cannot be deemed to have waived his right to be sentenced as provided by law" ( People v Watson, 197 AD2d 880). Therefore, we modify the adjudication by vacating that part of defendant's sentence ordering defendant to pay an additional 5% surcharge in addition to the 5% surcharge directed by Penal Law § 60.27 (8). (Appeal from Adjudication of Ontario County Court, Harvey, J. — Youthful Offender.)