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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GARY SMITH, Appellant.

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: The court erred in ordering restitution without conducting a hearing; the probation report, which was the sole basis for the court's order of restitution, is insufficient to determine the proper amount (see, People v Williams, 154 A.D.2d 945; People v Cheatum, 148 A.D.2d 986, lv denied 74 N.Y.2d 662). The order of restitution therefore is vacated and the matter remitted for a hearing.

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PEOPLE v. SMITH
(Dec 20, 1989)