People v Law
Annotate this CaseDecided on October 28, 2013
Supreme Court, Bronx County
The People of the State of New York
against
Rufus Law, Defendant.
0842-2012
For People of the State of New York:
Robert T. Johnson, Esq.
District Attorney, Bronx County:
By: Ravi Kantha, Esq.
Assistant District Attorney
For Defendant:
Rufus Law, Pro Se
#241-10-21013000813
Eric M. Taylor Center
18-18 Hazen Street
East Elmhurst, New York 11370
Dominic R. Massaro, J.
Defendant is presently incarcerated on Rikers Island. He moves pro se, pursuant CPL 420.40, for an order deferring the mandatory surcharge and fees that were imposed upon him when he was sentenced.
On April 12, 2013, Defendant pled guilty to Attempted Criminal Possession of a Weapon in the Second Degree (PL 110/265.03[3]). On May 28, 2013, Defendant was sentenced to a determinate term of one year imprisonment. He was also assessed a $300 mandatory surcharge, a $50 DNA databank fee, and a $25 crime victims assistance fee. [*2]
In a pre-printed motion, Defendant states that he is unable to pay the mandatory surcharge because he is indigent and has no income other than prison wages. In opposition, the People argue that there is no basis for deferral of payment of the mandatory surcharge because Defendant is incarcerated in a facility that provides for his basic needs and his claim is uncorroborated. Furthermore, the People maintain that courts lack the authority to defer the mandatory surcharge of a defendant incarcerated for over 60 days.
Legal Discussion
Article 60 of the Penal Law authorizes, among other things, sentences which include a mandatory surcharge and crime victim assistance fee in addition to any sentence required or permitted by law (PL 60.35[1][a][i]). Article 420 of the Criminal Procedure Law provides the Court with various options concerning payment and collection of the mandatory surcharge (see generally, CPL 420.10[1], CPL 420.35 and 420.40).
CPL § 420.40 and PL 60.35(8) provide a deferral mechanism for defendants incarcerated for less than 60 days. Some lower courts have held that courts lack the authority to defer the mandatory surcharge of a defendant incarcerated for over 60 days (see People v. Morrison 36 Misc 3d 880 [Sup Ct, NY County 2012]; People v. Hopkins, 185 Misc 2d 312 [Sup Ct, Kings County 2000]; other lower courts, including this court, have decided to the contrary (see People v. Bennett 2013 NY Slip Op 30676[U] [Sup Ct, Kings County]; People v. Coffman, 36 Misc 3d 1207[A] [Sup Ct, Bronx County 2012]; People v. Taylor, 2008 NY Slip Op 30900[U] [Sup Ct, Kings County]; People v. Pierce, 16 Misc 3d 1126[A] [Sup Ct, NY County 2007]; People v. Hazel, 13 Misc 3d 728 [Sup Ct, Bronx County 2006]). In People v. Kistner (291 AD2d 856 [4th Dept 2002]), the Fourth Department determined that courts have the authority to defer the mandatory surcharge of defendants incarcerated over sixty days (see People v. Camacho, 4 AD3d 862 [4th Dept 2004]; see also People v. Abdus-Samad, 274 AD2d 666 [3rd Dept 2000]).
To qualify for deferral of the surcharge and fees, a defendant must provide credible and verifiable evidence showing that, because of his indigence, payment of the surcharge would work an unreasonable hardship upon him or his immediate family (CPL 420 40[2]). Deferral is not given simply for the asking (see People v. Sabino, 2010 NY Slip Op 31291[U] [Sup Ct, Kings County]). Here, Defendant has not provided the Court with any "credible and verifiable information establishing that the surcharge would work an unreasonable hardship on defendant over and above the ordinary hardship suffered by other indigent inmates." (see Abdus-Samad at 667). Moreover, Defendant fails to show, or even allege, that he is responsible for supporting an immediate family member adversely affected by the deductions from his prison earnings (see People v. Taylor, supra). Since Defendant has failed to make the requisite showing as to why his mandatory surcharge and fees should be deferred, his motion pursuant to CPL 420.40 is denied.
This constitutes the decision and order of the Court.
October 28, 2013______________________________Dominic R. Massaro, JSC
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