Ordered that the sentence is modified, on the law, by deleting the provision thereof imposing a mandatory surcharge of $40. As so modified, the sentence is affirmed. The defendant may make an application to the County Court, Suffolk County, for a refund of the $40, and upon proof that payment has been made, his application shall be granted.
Where a defendant has made restitution, he shall not be required to pay a mandatory surcharge (see, Penal Law § 60...
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