People v. Aikens , 782 N.Y.S.2d 217 ( 2004 )

Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered March 5, 2002. The judgment convicted defendant, upon her plea of guilty, of grand larceny in the third degree and offering a false instrument for filing in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting her, upon the entry of an Alford plea (see North Carolina v Alford, 400 US 25 [1970]), of grand larceny in the third degree (Penal Law § 155.35) and offering a false instrument for filing in the first degree (§ 175.35). Contrary to defendant’s contention, County Court properly determined that the People established by a preponderance of the evidence that the Ontario County Department of Social Services sustained an actual out-of-pocket loss in the amount of $28,977.44 for child care expenses and Medicaid benefits (see § 60.27 [1]; People v Consalvo, 89 NY2d 140,144 [1996]). Furthermore, the court properly directed defendant to pay a 10% surcharge based upon affidavits of officials from the Ontario County and Seneca County Probation Departments (see § 60.27 [8]). We note however, that defendant may apply to the court to reduce the surcharge to 5% of the amount of restitution on the ground of undue hardship (see id.). Present—Pine, J.P., Hurlbutt, Scudder, Kehoe and Lawton, JJ.