People v. Neff

Sentence modified, on the law, by deleting the provision thereof imposing a surcharge of $40 or, in the alternative, a three-day term of imprisonment. As so modified, sentence affirmed. Defendant may make an application to the County Court, Nassau County, for a refund of the $40, and upon proof that payment has been made, his application shall be granted.

Although the defendant has apparently satisfied that portion of the subject judgment as imposed a mandatory surcharge of $40 or, in the alternative, an additional sentence of three days’ imprisonment, by rendering full payment of the $40 surcharge, we do not choose to dismiss the issue of the propriety of the alternative three-day term of imprisonment as academic in view of the possibility of its recurrence.

As the People concede, in the event that defendant failed to pay the $40 surcharge, he could not be required to serve an *722additional term of three days’ imprisonment inasmuch as he was sentenced, upon his plea of guilty to petit larceny, to the maximum term of incarceration which could be imposed for a class A misdemeanor (CPL 420.10 [4] [d]). Consequently, the imposition of a three-day jail sentence as an alternative tq the $40 surcharge was improper.

Further, where a defendant has made restitution or reparations, he shall not be required to pay a mandatory surcharge (Penal Law § 60.35 [6]). Therefore, the imposition of a $40 surcharge was inconsistent with the requirement that defendant make restitution.

Accordingly, we modify the sentence by deleting the provision thereof which imposed a surcharge of $40, or, in the alternative, a three-day term of imprisonment. Defendant may make an application in the County Court, Nassau County, for a refund of the $40. Mollen, P. J., Titone, Thompson and Weinstein, JJ., concur.