People v Pierce

[*1] People v Pierce 2007 NY Slip Op 51587(U) [16 Misc 3d 1126(A)] Decided on July 2, 2007 Supreme Court, New York County Kahn, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 2, 2007
Supreme Court, New York County

People of the State of New York,

against

Richard Pierce, Defendant.



1624/2002



For the People:

Eric Arnone, Esq.

Assistant District Attorney

Office of the District Attorney

One Hogan Place

New York, New York 10013

For the Defense:

Mr. Richard Pierce, Pro Se

Marcy L. Kahn, J.

By notice of motion and affidavit dated March 24, 2007, defendant Richard Pierce moves pro se to defer payment of the mandatory surcharge pursuant to CPL §420.40. The People oppose defendant's motion. For the reasons stated, the motion is denied, with leave to renew upon a proper showing.On July 10, 2003, defendant pleaded guilty before this court to attempted burglary in the second degree (PL §110/140.25[2]) in full satisfaction of the indictment. On July 24, 2003, pursuant to his plea agreement, defendant was sentenced to a determinate prison term of five years, to be followed by a five-year period of post-release supervision. At that time, the mandatory surcharge of $200 and the crime victim assistance fee of $10 were imposed pursuant to PL §60.35(1)(a), and judgment was entered on those obligations to pay. Defendant was represented by appointed counsel throughout the proceedings.

In his pre-printed form motion, defendant claims financial hardship, arguing that he receives no prison wages, is not employed by any business, has no real property and is indigent. The People oppose the motion, arguing that payment of mandatory [*2]surcharge and fees cannot be deferred, because the deferral provisions of CPL §420.40 do not apply to cases in which a defendant is sentenced to a term of incarceration greater than 60 days.

Penal Law §60.35 provides for imposition of a mandatory surcharge and other fees in criminal cases (PL §60.35[1][a]), and authorizes the collection of any unpaid portion of such surcharge or fees during a defendant's imprisonment. (PL §60.35 [5]). In 1995, the Legislature amended the Criminal Procedure Law to eliminate any possible judicial waiver of the surcharge and fees. (CPL §420.35[2], as amended by L. 1995, ch. 3, eff. July 1, 1995). That legislation, however, also created a statutory mechanism for deferral of the mandatory surcharge upon a judicial finding that its immediate imposition would work "an unreasonable hardship on the [defendant] or his or her immediate family." (CPL §420.40[2]). Subdivision 2 of section 420.40 provides for a hearing to determine hardship "[o]n an appearance date set forth in a summons issued pursuant to subdivision three [FN1] of section 60.35 of the penal law." Section 60.35(8) states in pertinent part: [A]t the time that the mandatory surcharge . . . [and] crime victim assistance fee . . . [are] imposed . . . [the sentencing court] shall, [sic] issue and cause to be served upon the person required to pay the mandatory surcharge . . . [and] crime victim assistance fee . . . , a summons directing that such person appear before the court regarding the payment of the mandatory surcharge . . . [and] crime victim assistance fee . . . , if after sixty days from the date it was imposed it remains unpaid.

(PL §60.35[8]).

That section, however, goes on to limit the availability of these procedures for process to return the defendant to court for the hardship hearing in the following terms: The court shall not issue a summons under this subdivision to a person who is being sentenced to a term of confinement in excess of sixty days in jail or in the department of correctional services. The mandatory surcharges, sex offender registration fee and DNA databank fees, crime victim assistance fees and supplemental sex offender assistance fees for those persons shall be governed by the provisions of section 60.30 of this article.

(Id.). Accordingly, the statute sensibly provides that a [*3]defendant who remains incarcerated sixty days after sentence is not expected to respond to court based upon service of a summons.

Section 60.30, which section 60.35(8) instead makes applicable to persons (such as defendant) who are serving terms of incarceration in excess of 60 days, provides as follows:

This article does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty and any appropriate order exercising such authority may be included as part of the judgment of conviction.

(PL §60.30).

Several lower courts have interpreted the inapplicability of the summons provision of PL §60.35(8) to inmates serving sentences greater than 60 days to mean that deferral of the mandatory surcharge is unavailable to these inmates. (See People v. Allen, 13 Misc 3d 1208[A] [Sup. Ct. New York Co. 2006]; People v. Hopkins, 185 Misc 2d 312 [Sup. Ct. Kings Co. 2000][both so holding]; but see People v. Hazel, 13 Misc 3d 728 [Sup. Ct. Bronx Co. 2006] [reaching a contrary conclusion]; People v. Parker, 183 Misc 2d 737 [Sup. Ct. Kings Co. 2000][same]).

This court does not share the view of those courts which have denied deferral of the surcharge, for several reasons. First, a restrictive view of the court's power to defer the surcharge of an incarcerated defendant ignores the authority expressly vested in the court by the terms of PL §60.30 quoted above regarding civil penalties, such as those established by Section 60.35 and at issue here. Obviously, a waiver of the surcharge would not be an appropriate exercise of such discretionary authority, as that has been explicitly prohibited by the 1995 legislation. (People v. Huggins, 179 Misc 2d 636, 638 [Greene Co. Ct. 1999]). "Deferral to a definite future time is however within the court's discretionary authority provided by Penal Law §60.30 . . . " (Id.). Moreover, under current law, a convicted defendant will always have to pay the surcharge and fees. To authorize payment on a later date does not, as waiver did, foreclose the state from ultimately recouping such sums.

Second, the aforementioned interpretation of the lower courts of section 420.40 and the entire statutory scheme regarding deferral of payment of the surcharge and fees directly conflicts with the position of the Appellate Division, Fourth Department, which remains the only appellate court to have spoken directly on the issue. In People v. Kistner, 291 AD2d 856 (4th Dept. 2002), the Fourth Department concluded that a lower court had "erred in determining that it lacked authority pursuant to CPL 420.40(2) to defer the mandatory surcharge" in a case [*4]involving an defendant serving a two-year state prison sentence. Subsequently, in People v. Camacho, 4 AD3d 862 (4th Dept. 2004), lv. den. 2 NY3d 761 (2004), the court reaffirmed its determination that "a court has the authority to defer the mandatory surcharge," albeit again in dictum, in a case involving an inmate serving a one and one-half-to-three year sentence imposed consecutively to another prison sentence. Absent contrary authority from the Court of Appeals or the Appellate Division, First Department, this court is bound by principles of stare decisis to follow the position of the Fourth Department in Kistner. (See People v. Turner, 5 NY3d 476, 482 [2005]; Mountain View Coach Lines v. Storms, 102 AD2d 663, 664-665 [2nd Dept. 1984]).[FN2]

Finally, to the extent that the lower courts which have barred CPL §420.40 deferral relief for defendants serving terms of incarceration in excess of 60 days have claimed that their result was dictated by the older appellate case law relating to applications for waiver of the surcharge [FN3], their rationale, in this court's view, is misplaced. The courts relied on the well-established rule that in effect prior to the elimination of waiver 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." (People v. Allen, supra, 13 Misc 3d 1208[A], at 1 [slip copy]; see People v. Hopkins, supra, 185 Misc 2d at 316 [both citing cases]). These older cases [FN4] regarding waiver do not govern procedures for [*5]deferral, however, either expressly or logically. Moreover, there is less reason to limit the availability of relief when the result is not forgiveness of a debt to the community, but only postponement of its collection. Under the old law an indigent defendant for whom waiver was available might well avoid payment of a substantial part of the surcharge once he or she was released.

Deferral of a surcharge is only proper, however, when "credible and verifiable information" establishes that collection "would work an unreasonable hardship on defendant over and above the ordinary hardship suffered by other indigent inmates." (People v. Kistner, supra 291 AD2d at 856, citing People v. Abdus-Samad, supra, 274 AD2d at 666-667). Defendant's form moving papers are not helpful in this respect, for they contain no information distinguishing his circumstances from those of other indigent inmates. In the absence in defendant's moving papers of credible and verifiable information establishing an unreasonable hardship when compared to the hardships ordinarily imposed on other inmates who are indigent, this court is required to deny his application. (See People v. Kistner, supra; People v. Abdus-Samad, supra).

Accordingly, defendant's motion to defer payment of the surcharge and fee is denied. The court grants defendant leave to renew his application upon a particularized showing of unreasonable hardship.

The foregoing constitutes the decision and order of this court.

______________________Marcy L. Kahn, J.S.C.

Dated: New York, New York

July 2, 2007 Footnotes

Footnote 1: The intended reference is clearly meant to be to PL §60.35(8), not (3).

Footnote 2: In addition, the Appellate Division, Third Department, while not directly passing on the issue, has suggested that if an incarcerated defendant were to provide "credible and verifiable information establishing that the surcharge would work an unreasonable hardship on [the] defendant over and above the ordinary hardship suffered by other indigent inmates," deferment of the surcharge would be appropriate. (See People v. Abdus-Samad, 274 AD2d 666, 667 [3rd Dept.], lv. den., 95 NY2d 862 [2000]).

Footnote 3: Prior to 1995, CPL §420.35(2) permitted the waiver of the surcharge where, due to the indigency of the offender, its payment "would work an unreasonable hardship" on the person convicted or his or her immediate family. In 1995, that section was amended to eliminate any possibility of waiver. (L. 1995, ch. 3, §68).

Footnote 4: See, e.g., People v. Bailey, 243 AD2D 256 (1st Dept. 1997), lv. den., 91 NY2d 888 (1998); People v. Velez, 216 AD2d 339, 340 (2nd Dept.), lv. den., 86 NY2d 785 (1995); People v. Ramirez, 208 AD2d 381 (1st Dept. 1994), lv. den., 84 NY2d 1037 (1995); People v. Velasquez, 198 AD2d 25 (1st Dept. 1993), lv. den., 82 NY2d 932 (1994).