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THE CRITERIA FOR IMPOSING THE MAXIMUM RESTITUTION SURCHARGE OF 10% WERE NOT MET (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined the criteria for imposing the maximum restitution surcharge of 10% were not met:

… [T]he judgment … is … modified as a matter of discretion in the interest of justice by reducing the surcharge to 5% of the amount of restitution … . * * *

… [T]he court erred in imposing the 10% surcharge 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] particular case exceeds five percent of the entire amount of the payment or the amount actually collected’ ” … . People v Webber, 2022 NY Slip Op 01904, Fourth Dept 3-18-22

Practice Point: Before the maximum restitution surcharge of 10% can be imposed, an affidavit must be filed demonstrating the actual cost of collection.

 

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