People v. Lynch

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Herkimer County Court for further proceedings in accordance with the following Memorandum: In view of defendant’s criminal record, we conclude that the sentence of incarceration imposed by County Court is not unduly harsh or severe (see, CPL 470.15 [6] [b]). We further conclude, however, that the court erred in determining the amount of restitution without conducting a hearing. The court properly considered the victim impact statement in making its “finding as to the dollar amount of the fruits of the offense” (Penal Law § 60.27 [2]). That statement alone, however, did not provide “a sufficient basis upon which to order restitution without a hearing” (People v Ashley, 162 AD2d 883, 885, Iv denied 76 NY2d 852; *1002see, People v Barnett, 237 AD2d 917, 918, Iv denied 90 NY2d 855; People v Monette, 199 AD2d 589). We therefore modify the judgment by vacating the amount of restitution, and we remit the matter to Herkimer County Court to determine the amount of restitution. (Appeal from Judgment of Herkimer County Court, Kirk, J. — Robbery, 3rd Degree.) Present — Green, J. P., Pigott, Jr., Balio and Fallon, JJ.