PEOPLE v. LYNCH (1998)

 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 A.D.2d 883, 885, 558 N.Y.S.2d 646, lv. denied 76 N.Y.2d 852, 560 N.Y.S.2d 991, 561 N.E.2d 891;  see, People v. Barnett, 237 A.D.2d 917, 918, 654 N.Y.S.2d 918, lv. denied 90 N.Y.2d 855, 661 N.Y.S.2d 181, 683 N.E.2d 1055;  People v. Monette, 199 A.D.2d 589, 604 N.Y.S.2d 333).   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.

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Herkimer County Court for further proceedings.

MEMORANDUM: