People v. Dublar

—Appeal by the defendant from a judgment of the County Court, Suffolk County (Mallon, J.), rendered October 16, 1985, convicting him of burglary in the third degree, upon a jury verdict, and imposing a sentence of six months’ imprisonment, running concurrently with and as a condition of, a term of five years’ probation, restitution, and a mandatory surcharge of $75.

Ordered that the judgment is modified, on the law, by deleting the provision thereof imposing a mandatory surcharge of $75. As so modified, the judgment is affirmed. The defendant may make an application to the County Court, Suffolk County, for a refund of the $75, and upon proof that payment has been made, his application shall be granted.

We find that the evidence, when viewed in the light most favorable to the People, was legally sufficient to support the defendant’s conviction on the charge of burglary in the third degree (see, People v Haile, 128 AD2d 891; People v Swain, 126 AD2d 763, Iv denied 69 NY2d 886; cf, People v Mackey, 49 NY2d 274, 279-280).

*728However, the sentencing court erred in imposing a mandatory surcharge in addition to restitution (see, Penal Law § 60.35 [6]; People v DeVita, 132 AD2d 616; People v Neff, 110 AD2d 721; but see, People v De Berry, 117 AD2d 1006). Since the defendant has made restitution, he is entitled to a refund of the mandatory surcharge upon proof of payment. Mollen, P. J., Thompson, Lawrence and Eiber, JJ., concur.