People v Bennett

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People v Bennett 2013 NY Slip Op 30676(U) March 28, 2013 Sup Ct, Kings County Docket Number: 5598/2009 Judge: Patricia DiMango Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] DECISION AND ORDER -againsl- indictinent No. 5598/2009 respects, The defendant was canvi Welfwe of a Child under the c thereon, on March 21,20 12, to c ent sentences year, respectively, to be followed by five years' post-release supervision. At sentencing, a Mandatary Surcharge of$300, a DNA fee of $50, and a $25 Crime Victim Assistance Fee were all imposed upon the defendant, for a total of$375 in charges and fees. l h e defendant, currently an ininate at Bedford Hills Correctional Facility, is seeking to waive or defer payment of her mandatory surcliwge and the other imposed fees or1 the ground that she is indigent and has no present meam of payitig these charges. In support of her application. Ms. Bennett has submitted affidavits in which she asserts her indigence, indicating that she has no properly, assets, bank accounts, or iticotne "exclusive of [her1 correctional facility wages." and that she rcceives "insufficient financfel support froin [* 2] . . . . fiirnily and friends." She does not state, however, what she earns at the Bedford Hills Correctional Facility or what support shc does receive from family or friends; nor does she provide any documentation reflecting her prison wages, inmate account status, or otherwise establishing her lack of financial resources. No other infomiation is furnished by the defendant in support of her motion, be it for "waiver" or deferral of payment of her $375 .OO ohligation. The People oppose the defendant's motion in all respects. To the extent the defendant is seeking a waiver of payment that such a waiver e any claim of undue e The court now turns to the deferment branch of the defentadnt's motion, While SQIIX cotlrts have held to the contrary witb gmd to a defmdant smtmced to a period of incarceration greater than 60 days (m,u, People v , 185 Misc2d 312 [SupCt. Kings Co. 2000'l). this court is of the view that it is permissible, pursuant to CPL 6 420.40, to defer payment, in whole or in part, of the mandatory surcharge and other fees %e CPL 8 420.35 (2); see alscx, Peo,piev Owens, 10 AD3d 619 (2d Dept 2004), ki denied, 4 NY3d 766 (2005);people v Morrison, 36 Misc3d 880,882 [Sup. Ct. NY Co. 20121 but see, People v Brim L, 17 Misc3d 724 [ Watertown City Ct. 2007 - finding lack of waiver provision for disabled persons unccmstitutional]. Also, legislation was proposed in 20 1 1 to repeal the waiver prohibition, but was not passed. I -7 ; [* 3] v Kistner, 291 AD2d 856 [4th Dept. 20021; accord, People v Camach0,4AD3d 862 [4th Depz. 20041, k. denied, 2 NY3d 761; Peoole v Smith, 309 AD2d 1282, 1283 14th Dcpt. 20031; ser; People v Doinin 13 AD3d 391,392 f2nd Dept. 2004 -- citing mov2& People v Hunr;rzn 179 Misc2d 636,638 (Greene County Ct. 1999)], &. denied, 4 * s, NY3d 830 [2005]; People v Coffmaq, 36 Misc3d 1207(A) [Sup.Ct. Bronx Co. 20121;-P v Pierce, 16 Misc3d I126(A) [Sup.Ct. NY Co. 20071). (~ee,People a, defendant must e payment of smch fe Review leads to the ine regard, With regard to t other inmate funds, if any, are being appli usual mwner. 'That being the case, it is the court's understanding that the surcharge and fees are typically collected at the rate of20?4 from inmate earnings and 50% from any outside funds given to the inmate where there is one payment obligation on the inmate (or one collective set of payment obligations) (a, v Hazel, 13 Misc3d 728, 730 [Sup.Ct. Bronx Co. 20061). Peopl,e Such payment or repayment owed by the ininate is termed an "encumbrance." The deduction process is different for certain other payment obligations (such as for "advances,""gate money," or coun fees) or where a clefendant is pitying off two (or more) active "encumbrances." (m DOCCS Directive No. 2788 I l V l [Bf 131 [b], IC]; see also. Matter of [* 4] ' . . Bepull v Cioord, 249 AD2d 86 1 [3rd Ikpt. 199SJ). In the latter case, greater percentages of inmate funds are applied to the inmate's payment obiigations. Here, however, the defendant has not evcn shown what moneys are being taken from her, nor what other finmciai burdens, I'amilial suppor~. obligations or necessary expenses she actually has, ifany, other than the $375 obligation known to this court; nor has the defendant alleged that she has any basic or special needs which arc riot being met. Ms. Bennett's papers are silent as to all ofthese details and she has not provided any proof of her financial situation. fendmit has not alleged and d onstralcd to this court, by credible without a hearing. Dated: Brooklyn, New rcb 28,20 13 E N 'r E K, You are hereby advised that your right to 8 1 appeal from this order determining your 1 motion is not automatic. In order to bring an appeal frotn this order, YOU must apply to 8 Justicc of the Appellate Division for il certificate granting leave to itppeal. 'This application [* 5] I 1 .~.. . , ..,, . ,".. .. . ' _.X".,I.__,, . . must be filed within 30 days after your being served by the District Attorney or the court with the court order denying your motion. 'The application must contain your name and address, indictment number, the y itestions of law or fact which you believe ought to be reviewed and a statement that no prior application for such certificate has been made. You must include a copy of the court order and a copy of any opinion of the court. In addition, ycm must serve a copy of your application on the District Attorney. You are further advised that, upon proof o f ancia1 inability to retain counsel and to pay the costs and expenses of the appeal, you may Division for the assignment of caunsel and for leave to prosccute the with printing. ion relief wilt be entertained only if pmmission to ac g leave tu a p p d is gmted. (22 N Y C W 9 67 1.5.) -5- . I .

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