(concurring). We concur inasmuch as we respectfully disagree with the conclusion of the majority that defendant was required to preserve for our review his contention that the Ontario County Probation Department affidavit was inadequate to support an enhanced surcharge of 10% of the entire amount of restitution that he was ordered to pay as part of the sentence (see Penal Law § 60.27 [8]). In our view, that contention does not require preservation because “ ‘[a] defendant cannot be deemed to have waived his right to be sentenced as provided by law’ ” (People v Gahrey M.O., 231 AD2d 909, 910 [1996]). Thus, contrary to the view of the majority, we conclude that we are obligated to address the merits of defendant’s contention regarding the sufficiency of the affidavit in question. Present—Centra, J.P, Fahey, Carni, Sconiers and Valentino, JJ.