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

868
KA 13-02111
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID J. PEREZ, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JASON A. MACBRIDE
OF COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Ontario County Court (Craig J. Doran,
J.), dated November 1, 2013. The order directed defendant to pay
certain restitution.

     It is hereby ORDERED that the order 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 order is affirmed.

     Memorandum: In appeal No. 1, defendant appeals from an order
directing him to pay restitution and, in appeal No. 2, he appeals from
an amended order that corrected a typographical error in the order in
appeal No. 1. We note at the outset that the appeal from the amended
order must be dismissed because the amended order did not effect a
“material or substantial change” to the order in appeal No. 1 (Matter
of Kolasz v Levitt, 63 AD2d 777, 779). We also note that, as
defendant contends and the People correctly concede, County Court
failed to conduct an adequate colloquy with respect to the waiver of
the right to appeal, rendering that waiver invalid (see generally
People v Lopez, 6 NY3d 248, 256).

     On the merits, we reject defendant’s contention that the evidence
at the restitution hearing was insufficient to support the amount of
restitution ordered. The People met their burden of establishing the
amount of restitution by a preponderance of the evidence through,
inter alia, the victims’ testimony, which the court found to be
credible (see CPL 400.30 [4]; People v Tzitzikalakis, 8 NY3d 217, 221-
222; People v Wilson, 108 AD3d 1011, 1013-1014). Although defendant
asserts that the victims were lying about the amount of money that was
stolen from them, we perceive no basis in the record for us to
substitute our credibility determinations for those of the court,
                                 -2-                           868
                                                         KA 13-02111

which had “the advantage of observing the witnesses and [was] in a
better position to judge veracity than an appellate court” (People v
Dolan, 155 AD2d 867, 868, lv denied 75 NY2d 812).

     As the People again correctly concede, however, the court erred
in imposing a surcharge of 10% of the total amount of the restitution
ordered instead of the 5% surcharge directed by Penal Law § 60.27 (8).
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 order in appeal No. 1
accordingly. The additional surcharge was not authorized because
there was no “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
[this] case exceeds five percent of the entire amount of the payment
or the amount actually collected” (§ 60.27 [8]; see People v Stachnik,
101 AD3d 1590, 1592, lv denied 20 NY3d 1104).




Entered:   July 2, 2015                        Frances E. Cafarell
                                               Clerk of the Court
