Majority
p. 1023The 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 AD2d 945 ; People v Cheatum, 148 AD2d 986 , Iv denied 74 NY2d 662 ). The order of restitution therefore is vacated and the matter remitted for a hearing. (Appeal from judgment of Supreme Court, Erie County, Dadd, J. — driving while intoxicated.) Present — Boomer, J. P., Green, Pine, Lawton and Davis, JJ.