People v. Dixon , 549 N.Y.S.2d 538 ( 1989 )

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 People concede that defendant’s sentence on the first count of offering a false instrument for filing was unlawful because the sentence of probation must run concurrently with the four-month imprisonment term (see, Penal Law §60.01 [2] [d]). We modify the judgment to vacate the sentence and remit this matter for resentencing.

The People further concede that the sentencing court erred in failing to fix the time and manner of payment of restitution. We agree, and the matter is remitted for the court to make that determination (see, People v Watkins, 155 AD2d 997). We do not reach the claim that the court erred in requiring defendant to execute three confessions of judgment as a condition to probation. On remittal, the sentencing court should reconsider whether this condition should be imposed in light of the mandates of CPL 420.10 (1) and (6) (see, People v Burfield, 145 AD2d 959).

Although sufficient evidence was presented for the sentencing court to fix the amount of restitution, we disagree with the court’s ultimate findings. In fixing the sum owed to the Department of Social Services and Division for Youth, the court made minor mathematical errors. We modify the amount of restitution owed to each agency to $2,336.13 and $5,369.41, respectively. With respect to the amount fixed for restitution to the Division of Criminal Justice Services, the only deductions supported by the record include $746.70 (telephone expense), $389.76 (lodging and transportation expense) and $700 (Mint Restaurant party). Accordingly, we modify the amount of restitution owed to the Division to $9,746.35. (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — offering false instrument for filing, first degree.) Present— Boomer, J. P., Green, Pine, Balio and Lawton, JJ.