People v Allen

[*1] People v Allen 2006 NY Slip Op 51735(U) [13 Misc 3d 1208(A)] Decided on June 2, 2006 Supreme Court, New York County Obus, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 2, 2006
Supreme Court, New York County

The People of the State of New York

against

Simard Allen, Defendant.



002/05

Michael J. Obus, J.

On January 9, 2006, the defendant pleaded guilty to the crimes of forgery in the second degree, Penal Law § 170.10, under Indictment Numbers 4621/04 and 4630/04, as well as bail jumping in the second degree, Penal Law § 215.56, under Indictment Number 002/05. On February 2, 2006, in accordance with the terms of the plea agreement, the defendant was sentenced to concurrent terms of incarceration of from two to four years in prison. As per Penal Law § 60.35, the court also imposed the various mandatory surcharges and fees in each case.

By pro se notice of motion dated April 28, 2006, the defendant moved this court for an order resentencing him on the ground that he is indigent. The People filed a response in opposition on May 16, 2006.

Specifically, as the defendant's pre-printed motion states, his application is for resentence where a defendant is unable to pay a fine imposed by the court pursuant to Criminal Procedure Law § 420.10. However, the relief actually requested pertains not to the collection of fines, restitution or reparation to which § 420.10 relates, but rather to surcharges and fees. Accordingly, the court will consider the defendant's application as one seeking to resentence him on the ground that he is unable to pay the fees and surcharges imposed in these cases.

Inasmuch as the imposition of any conviction for a felony carries with it a levy of the mandatory surcharge, DNA databank fee and crime victim assistance fee, the relief that the defendant seeks, resentencing, is unavailing. See Penal Law 60.35(1). Similarly, because a waiver of these levies is now statutorily prohibited, such a request would be unavailing. See Criminal Procedure Law § 420.35(2)("under no circumstances shall the mandatory surcharge, . . . , DNA databank fee or the crime victim assistance fee be waived," with one exception not here relevant.)

In addition, payment of the mandatory surcharges and fees cannot be deferred for the deferral provisions of Criminal Procedure Law Section 420.40 do not apply to cases where, as here, the defendant is sentenced to a term of incarceration greater than 60 days. [*2]See, e.g., People v Hopkins, 185 Misc 2d 312, 315 (Kings Co. Sup. Ct. 2000); People v Huggins, 179 Misc 2d 636, 637 (Greene Co. Ct. 1999); People v Ramos, NYLJ, August 31, 2000, Bronx Co. Sup. Ct., p. 23, col. 5.

In any event, although the Criminal Procedure Law was amended in 1995 to permit the deferral of a mandatory surcharge, see id., the standard for determining whether to allow such a deferral is the same as that for determining whether it was permissible to waive a mandatory surcharge under the old law: "payment of said surcharge would work an unreasonable hardship on the person or his or her immediate family." Compare 420.40(2) with 420.35(3). It has also been firmly established that an application to waive a mandatory surcharge must be denied as premature where it has been filed prior to the completion of the applicant's term of imprisonment. See, e.g., People v Domin, 13 AD3d 391, 392 (2nd Dept 2004), leave denied 4 NY3d 830 (2005)("[t]he defendant's request to defer the payment of the mandatory surcharge until his release from incarceration was premature."); People v West, 124 Misc 2d 622 (Co. Ct. Yates Co. 1984); People v Bailey, 243 AD2d 256 (1st Dept 1997), appeal denied 91 NY2d 888 (1998), citing People v Ramirez, 208 AD2d 381 (1st Dept 1994), appeal denied 84 NY2d 1037 (1995); People v Velez, 216 AD2d 339, 340 (2d Dept), appeal denied 86 NY2d 785 (1995). In light of the same governing standard, it follows that a motion to defer a mandatory surcharge or fee must be denied as premature where it too, as here, has been filed prior to the completion of the movant's term of incarceration.

Furthermore, even if permitted, deferral would not be appropriate in this case. . The sole allegation offered in support of his motion is that he is not presently employed due to his incarceration and earns only $1.60 per week. Under these circumstance, "[t]here is no credible and verifiable information" before this court "establishing that the mandatory surcharge [and other mandatory assessments] would work an unreasonable hardship on defendant over and above the ordinary hardship suffered by other indigent inmates." People v Abdus-Damad, 274 AD2d 666, 667 (3rd Dept ), leave denied 95 NY2d 862 (2000); see, e.g., People v Parker, 183 Misc 2d 737, 738 (Kings Co. Sup. Ct. 2000); Hopkins, 185 Misc 2d at 317-18; People v Llanos, NYLJ, August 4, 2000, Bronx Co. Sup. Ct., p. 28, col. 2; Ramos, NYLJ, August 31, 2000, at p. 23, col. 5.

Accordingly, the defendant's application is denied in full.

The foregoing opinion shall constitute the decision and order of the court.

Enter.

Dated:

JSC