           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

467
KA 15-01034
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

CLAUDIE V. GOODENOW, JR., DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.


     Appeal from a judgment of the Allegany County Court (Thomas P.
Brown, J.), rendered April 23, 2015. The judgment convicted
defendant, upon his plea of guilty, of grand larceny in the third
degree, criminal possession of a controlled substance in the seventh
degree and conspiracy in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reducing the surcharge to 5% of the amount
of restitution and as modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of, inter alia, grand larceny in the third degree
(Penal Law § 155.35), defendant contends only that County Court erred
in assessing a 10% restitution collection surcharge pursuant to Penal
Law § 60.27 (8). Although defendant’s contention is unpreserved for
our review (see People v Parker, 137 AD3d 1625, 1626; People v
Kirkland, 105 AD3d 1337, 1338, lv denied 21 NY3d 1043), we note that
the People do not contest defendant’s assertion that the People failed
to file the requisite affidavit from an official listed in CPL 420.10
(8) (see Parker, 137 AD3d at 1626-1627; People v Huddleston, 134 AD3d
1458, 1459, lv denied 27 NY3d 966; People v Perez, 130 AD3d 1496,
1497). We exercise our power to review the issue as a matter of
discretion in the interest of justice, and we modify the judgment by
reducing the surcharge from 10% to 5% of the amount of the ordered
restitution (see Parker, 137 AD3d at 1627; Huddleston, 134 AD3d at
1459; Perez, 130 AD3d at 1497).




Entered:    April 28, 2017                         Frances E. Cafarell
                                                   Clerk of the Court
