People v. Smith

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: The court erred in ordering restitution without conducting a hearing; the probation report, which was the sole basis for the court’s order of restitution, is insufficient to determine the proper amount (see, People v Williams, 154 AD2d 945; People v Cheatum, 148 AD2d 986, Iv denied 74 NY2d 662). The order of restitution therefore is vacated and the matter remitted for a hearing. (Appeal from judgment of Supreme Court, Erie County, Dadd, J. — driving while intoxicated.) Present — Boomer, J. P., Green, Pine, Lawton and Davis, JJ.