
    The People of the State of New York, Respondent, v Michael Neff, Appellant.
   Sentence modified, on the law, by deleting the provision thereof imposing a surcharge of $40 or, in the alternative, a three-day term of imprisonment. As so modified, sentence affirmed. Defendant may make an application to the County Court, Nassau County, for a refund of the $40, and upon proof that payment has been made, his application shall be granted.

Although the defendant has apparently satisfied that portion of the subject judgment as imposed a mandatory surcharge of $40 or, in the alternative, an additional sentence of three days’ imprisonment, by rendering full payment of the $40 surcharge, we do not choose to dismiss the issue of the propriety of the alternative three-day term of imprisonment as academic in view of the possibility of its recurrence.

As the People concede, in the event that defendant failed to pay the $40 surcharge, he could not be required to serve an additional term of three days’ imprisonment inasmuch as he was sentenced, upon his plea of guilty to petit larceny, to the maximum term of incarceration which could be imposed for a class A misdemeanor (CPL 420.10 [4] [d]). Consequently, the imposition of a three-day jail sentence as an alternative tq the $40 surcharge was improper.

Further, where a defendant has made restitution or reparations, he shall not be required to pay a mandatory surcharge (Penal Law § 60.35 [6]). Therefore, the imposition of a $40 surcharge was inconsistent with the requirement that defendant make restitution.

Accordingly, we modify the sentence by deleting the provision thereof which imposed a surcharge of $40, or, in the alternative, a three-day term of imprisonment. Defendant may make an application in the County Court, Nassau County, for a refund of the $40. Mollen, P. J., Titone, Thompson and Weinstein, JJ., concur.  