PEOPLE v. AIKENS

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), 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). 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.).