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

487
KA 13-01686
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HOWARD UNDERWOOD, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered March 11, 2013. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree
(two counts) and robbery in third 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, two counts of robbery in the first
degree (Penal Law § 160.15 [3]), defendant contends, among other
things, that County Court committed several errors with respect to its
restitution orders. Initially, we agree with defendant that his
waiver of the right to appeal was not valid (see e.g. People v
Hassett, 119 AD3d 1443, 1443-1444, lv denied 24 NY3d 961; People v
Mobley, 118 AD3d 1336, 1336-1337, lv denied 24 NY3d 1121; People v
Blacknell, 117 AD3d 1564, 1564-1565, lv denied 23 NY3d 1059), and thus
that waiver does not bar his challenges to the restitution orders.

     Insofar as defendant challenges the amount of restitution, we
conclude that he “was not entitled to a hearing to determine the
amount of restitution . . . inasmuch as the record establishes that he
expressly agreed to the amount . . . at sentencing” (People v Harris,
31 AD3d 1194, 1195, lv denied 7 NY3d 848; see People v Farewell, 90
AD3d 1502, 1503, lv denied 18 NY3d 957).

     We reject defendant’s further contention that the court erred in
ordering him to pay restitution “because the court did not order his
codefendant to pay restitution. Defendant is liable for the entire
amount under the doctrine of joint and several liability” (People v
Sanders, 24 AD3d 1307, 1308, lv denied 6 NY3d 838, citing People v
                                 -2-                           487
                                                         KA 13-01686

Kim, 91 NY2d 407, 412). Furthermore, we reject defendant’s contention
that the court erred in directing that payment be made to one of the
victims of his crimes because that victim submitted a claim for
reimbursement to an insurer. There is no indication in the record
that the victim has received any funds. In any event, “[a]lthough the
award to the victim would [be] offset by any insurance funds [he]
receive[s], defendant’s obligation would not [be] reduced” (People v
Ford, 77 AD3d 1176, 1178, lv denied 17 NY3d 816).

     We agree with defendant, however, that the court erred in
imposing a 10% surcharge on the restitution orders. 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 [5%]
of the entire amount of the payment” (Penal Law § 60.27 [8]). “There
is no affidavit in the record supporting the imposition of a 10%
surcharge on the amount of restitution ordered in this case” (People v
Whitmore, 234 AD2d 1008, 1008; see People v Simonton, 244 AD2d 1004,
1004-1005, lv denied 91 NY2d 930). Although defendant failed to
preserve his contention for our review, we exercise our power to
review it as a matter of discretion in the interest of justice (cf.
People v Kirkland, 105 AD3d 1337, 1338-1339, lv denied 21 NY3d 1043),
and we modify the judgment accordingly.

     Finally, although the invalid waiver of the right to appeal does
not bar defendant’s challenge to the severity of his sentence, we
conclude that the sentence is not unduly harsh or severe.




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
