
    The People of the State of New York, Respondent, v Raymond DeVita, Appellant.
   Appeal by the defendant, as limited by his brief, from a sentence of the County Court, Suffolk County (Mallon, J.), imposed February 10, 1986, upon his conviction of forgery in the third degree (three counts), upon his plea of guilty, the sentence being a definite term of imprisonment of 60 days running concurrently therewith and as a condition thereof, three years’ probation with restitution, and a mandatory surcharge of $40.

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 § 60.35 [6]; People v Neff, 110 AD2d 721). Thompson, J. P., Lawrence, Rubin, Kunzeman and Sullivan, JJ., concur.  