The People of the State of New York, Respondent, v. Joseph F. J. Smith, Appellant

The People of the State of New York, Respondent, v Joseph F. J. Smith, Appellant. [MAJORITY] — Appeal by the defendant, as limited by his motion, from so much of a sentence of the County Court, Orange County (Patsalos, J.), imposed July 31, 1987, as required him to pay restitution in the amount of $72,842.52 ($69,373.83 plus a 5% surcharge of $3,468.69), in 60 monthly installments, upon his conviction of criminal possession of a forged instrument in the second degree (two counts), upon his plea of guilty. Ordered that the sentence is modified, on the law and as a matter of discretion in the interest of justice, by vacating so much of the sentence as directed the defendant to pay restitution in the amount of $72,842.52 ($69,373.83 plus a 5% surcharge of $3,468.69) by installments of $1,214.04 per month for 59 months and a final installment of $1,214.16, commencing upon the defendant’s release from incarceration, and substituting therefor a provision directing the defendant to pay restitution in the amount of $52,892.52 ($50,373.83 plus a 5% surcharge of $2,518.69) by installments of $881.54 per month for 59 months and a final installment of $881.66, commencing upon the defendant’s release from incarceration; as so modified, the sentence is affirmed insofar as appealed from. In directing the judgment of restitution, the sum could not exceed the amount alleged to have been misappropriated by the defendant in the indictment (see, Penal Law § 60.27 [5]). As conceded by the People, that sum in this case was $50,373.83, and not $69,373.83, as found by the sentencing court. We have modified the sentence regarding restitution accordingly. The other contentions raised by the defendant are either unpreserved for appellate review or without merit. Mollen, P. J., Lawrence, Fiber and Spatt, JJ., concur.