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