People v. Christie , 727 N.Y.S.2d 683 ( 2001 )

—Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal mischief in the third degree (Penal Law § 145.05), defendant contends that County Court erred in imposing a 10% surcharge on the amount of restitution ordered rather than the 5% surcharge directed by Penal Law § 60.27 (8). Defendant further contends that the permanent order of protection impermissibly extends more than three years beyond the maximum expiration date of his term of incarceration. We agree with both contentions. The affidavit of the director of the Probation Department fails to demonstrate “that the actual cost of the collection and administration of restitution” exceeds 5% of the amount of restitution imposed (Penal Law § 60.27 [8]; see, People v Hill, 277 AD2d 971). We therefore modify the judgment by reducing the surcharge to 5%. Further, we note that the permanent order of protection must be amended by limiting its duration to “three years from the date of the expiration of the maximum term of [the] indeterminate * * * sentence of imprisonment actually imposed” (CPL 530.13 [4] [ii]; see, People v Wilks, 284 AD2d 905; People v Gibbons, 270 AD2d 937, 938), taking into account any jail time credit to which defendant is entitled (see, Penal Law § 70.30 [3]; People v Harris, 285 AD2d 980 [decided herewith]). (Appeal from Judgment of Genesee County Court, Noonan, J. — Criminal Mischief, 3rd Degree.) Present — Hayes, J. P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.