The People, Respondent,v.Anthony Jones, Appellant.BriefN.Y.January 4, 2016To be submitted by KRISTINA SCHWARZ NEW YORK SUPREME COURT APPELLATE DIVISION - FmSTDEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANTHONY JONES, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT . KRISTINA SCHWARZ Of Counsel June, 2013 STEVEN BANKS Attorney for Defendant-Appellant THE LEGAL AID SOCIETY Criminal Appeals Bureau 199 Water Street - 5th Floor New York, N.Y. 10038 (212) 577-3587 kschwarz@legal-aid.org TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................... ii PRELIMINARY STATEMENT ..................................................................... 1 QUESTION PRESENTED ............................................................................. 2 STATEMENT OF FACTS ............................................................................. 2 The Plea ................................................................................................ 2 The Sentencing ..................................................................................... 3 ARGUMENT POINT I APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHERE THE COURT ERRONEOUSLY BELIEVED THAT IT WAS OBLIGED TO IMPOSE THE SURCHARGE WITHOUT A HEARING, EVEN IF, IN THE EXERCISE OF ITS DISCRETION, IT BELIEVED THAT THE SURCHARGE WOULD BE A FINANCIAL HARDSHIP TO APPELLANT. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, § 6; PEOPLE v. FARRAR, 52 N.Y.2d 302, 307 (1981) ......................................................... 4 CONCLUSION ............................................................................................... 8 ADDENDUM STATEMENTPURSUANTTORULE5531 .................................. 1A 1 TABLE OF AUTHORITIES FEDERAL CASES Mask v. McGuiness, 233 F.3d 132 (2nd Cir. 2000) ....................................... 7 STATE CASES People v. Abdus-Samad, 274 A.D.2d 666 (3rd Dept.) ................................... 6 People v. Camacho, 4 A.D.3d 862 (4th Dept. 2002) ...................................... 5 People v. Farrar, 52 N.Y.2d 302 (1981) .................................................. 2, 6-7 People v. Harris, 51 A.D.3d 523 (1st Dept. 2008) .......................................... 4 People v. Hazel, 13 Misc.3d 728 (Sup. Ct., Bx. Co. 2006) ............................ 5 People v. Hernandez, 93 N.Y.2d 261 (1999) .................................................. 4 People v. Hopkins, 185 Misc.2d 312 (Sup.Ct., Kings Co. 2000) ................... 6 People v. Kistner, 291 A.D.2d 856 (4th Dept. 2002) ..................................... 6 CONSTITUTIONAL PROVISIONS N. Y. Canst., Art. I, § 6 ............................................................................ 2, 5, 7 U.S. Canst., Amend. XIV ....................................................................... 2,5,7 STATUTES C.P.L. § 420.40 ............................................................................................... 5 C.P.L. § 420.40(2) ........................................................................................ 5-6 ii P.L. § 220.09(1) .............................................................................................. 2 P.L. § 220.16(1) ...................................................................................... 1, 2, 3 P.L. § 220.39(1) .......................................................................................... 1,3 111 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ----------------------------------------------------------------------}( THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANTHONY JONES, Defendant-Appellant. ----------------------------------------------------------------------}( PRELIMINARY STATEMENT This is an appeal from judgments of the Supreme Court, New York County, rendered March 13, 2012, convicting appellant, after a guilty plea under 4456/11, of criminal possession of a controlled substance in the third degree (P.L. § 220.16(1)) and after a guilty plea under 561612011, of criminal sale of a controlled substance in the third degree (P.L. § 220.39(1)) and sentencing him to concurrent six-month definite jail terms (Solomon, J., at plea and sentence). Notice of appeal was timely filed, and on May 15, 2012, this Court granted appellant leave to appeal as a poor person and assigned Steven Banks as counsel on appeal. No application has been made for a stay of 1 execution of this judgment. On information and belief, appellant has finished the jail sentence imposed here. The Plea QUESTION PRESENTED 1. Whether appellant's right to due process was violated where the court erroneously believed that it was obliged to impose the surcharges without a hearing, even if, in the exercise of its discretion, it believed that the surcharge would be a financial hardship to appellant. U.S. Const., Amend. XIV; N.Y. Const., Art. I, § 6; People v. Farrar, 52 N.Y.2d 302,307 (1981). STATEMENT OF FACTS On February 14, 2012, under New York County Indictment Number 4456111, which charged appellant with criminal possession of a controlled substance in the third degree, P.L. § 220.16(1), and criminal possession of a controlled substance in the fourth degree, P.L. § 220.09(1), appellant pled guilty to criminal possession of a controlled substance in the third degree with a promised sentence of six months in jail, in satisfaction of the indictment (P. 5_6).1 At the same time, under New York County Indictment Number 5616111, which charged appellant with criminal sale of a controlled Numbers in parentheses preceded by "P." refer to the pages of the plea transcript dated February 14, 2012, and those preceded by "S." refer to the sentencing transcript dated March 13,2012. 2 substance in the third degree, P.L. § 220.39(1), and criminal possession of a controlled substance in the third degree, P.L. § 220.16(1), appellant pled guilty to criminal sale of a controlled substance in the third degree with a promised sentence of six months in jail, in satisfaction of the indictment (P. 5-6). Under New York County Indictment Number 4456/11, appellant admitted that on September 4, 2011, he possessed cocaine with the intent to sell it; under New York County Indictment Number 5616/11, appellant admitted that on November 29, 2011, he sold cocaine to an "uncovered" police officer (P. 7). The court promised to run the sentences on each indictment concurrently with each other, nunc pro tunc to the date of November 30, 2011 (P. 8). Additionally, appellant agreed to forfeit $334 that was taken from him by the police (P. 8). The Sentencing On March 13, 2012, the sentencing hearing was held. The court imposed the promised six-month concurrent sentences (S. 3). Immediately thereafter, defense counsel asked the court to consider deferring. the imposition of the mandatory surcharge. In response, the COUlt stated, "I can't do it, the law doesn't allow it. If you look at the statute and cases, 3 clearly, I can't do it" (S. 3-4). The court then emphasized this point by ending, "If I could, I would" (S. 4). ARGUMENT POINT APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHERE THE COURT ERRONEOUSLY BELIEVED THAT IT WAS OBLIGED TO IMPOSE THE SURCHARGE WITHOUT A HEARING, EVEN IF, IN THE EXERCISE OF ITS DISCRETION, IT BELIEVED THAT THE SURCHARGE WOULD BE A FINANCIAL HARDSHIP TO APPELLANT. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. I, § 6; PEOPLE v. FARRAR, 52 N.Y.2d 302, 307 (1981). A defendant is entitled to be sentenced by a court that has examined all the relevant factors and carefully exercised its discretion in imposing that sentence.2 The court is required to exercise its discretion whether or not a sentence was negotiated at the time of the plea. Here, the trial comt mistakenly believed that it could not decide whether to defer the surcharge, because it was "mandatory," and thus did not afford appellant his right to have the court consider whether the payment of the surcharge would be an unreasonable hardship (S. 2-3). The court's mistaken belief violated 2 H[S]urcharges are part of a defendant's sentence for the purpose of appealability and reviewability" People v. Harris, 51 A.D.3d 523 (1st Dept. 2008), People v. Hernandez, 93 N.Y.2d 261, 268 (1999). 4 appellant's due process rights at sentencing. Accordingly, this Court should remand appellant's case to the trial court for that court to properly exercise its discretion at sentencing. U.S. Const., Amend. XIV; N.Y. Const., Art. I, §6. C.P.L. § 420.40 authorizes trial courts to defer payment of the mandatory surcharge in accordance with the standards set forth in C.P.L. § 420.40(2). In order to obtain deferral of the payment of the surcharge, "the defendant must establish, by credible and verifiable information, that present (installment) payment of such fees would work 'an unreasonable hardship on defendant over and above the ordinary hardship suffered by other indigent inmates.'" People v. Ortiz, (Sup. Ct., Kings Co., Jan. 3, 2013). The length of a defendant's sentence is not determinative of a defendant's right to seek a deferral - a defendant sentenced to a period of incarceration greater than 60 days is entitled to seek deferral of the payment of the surcharge. People v. Camacho, 4 A.D.3d 862 (4th Dept. 2002); People v. Ortiz, supra; People v. Coffman, 36 Misc.3d 1027(A) (Sup. Ct., Bx. Co. 2012); People v. Pierce, 16 Misc.3d 1126(A) (Sup. Ct., N.Y. Co., 2007); People v. Hazel, 13 Misc.3d 728, 729 (Sup. Ct., Bx. Co. 2006).3 3 Some trial courts have held that a defendant sentenced to a period of incarceration greater than 60 days is not entitled to seek deferral of the surcharge. See People v. Allen, 5 - A trial court must exercise its discretion, carefully considering all relevant factors, in imposing a sentence on a defendant. In People v. Farrar, 52 N.Y.2d 302 (1981), the trial court was displeased with the harshness of the negotiated sentence, but nevertheless imposed such sentence, believing that it lacked the power to do otherwise. The Court of Appeals ruled that "a court must exercise its discretion at sentencing, notwithstanding that a sentence was negotiated at the time of the plea, and must be free to impose a lesser penalty if warranted" Id. 308. Here, at appellant's sentencing, counsel requested that the court defer payment of the surcharge. In response, the court imposed the surcharges, stating that "the law does not allow [the deferral of surcharges]" (S. 3). The court's statement that the law mandated the imposition of surcharges belies a mistaken belief that the court had no choice other than to impose the surcharges on appellant, even if it had reservations in doing so. To the 13 Misc.3d 1208(A) (Sup. Ct., N.Y. Co. 2006) People v. Hopkins, 185 Misc.2d 312 (Sup.Ct., Kings Co. 2000). These decisions are in direct conflict with People v. Kistner, 291 A.D.2d 856 (4th Dept. 2002), apparently the only appellate decision directly addressing this issue (where defendant had been convicted of attempted burglary in the second degree, "the court erred in determining that it lacked authority pursuant to C.P.L. § 420.40(2) to defer the mandatory surcharge"). The Appellate Division, Third Department, in People v. Abdus-Samad, 274 A.D.2d 666, 667 (3rd Dept.), Iv. den., 95 N.Y.2d 862 (2000), in dictum, had reached the same conclusion as Kistner (if an incarcerated defendant were to provide "critical 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). 6 contrary, if the court believed that payment of the surcharges could be an unreasonable hardship for appellant, it could have held a hearing, and then, in the court's discretion, deferred payment of the surcharges. In fact, the court was obliged to consider this alternative under Farrar: Since the court misapprehended the applicable sentencing requirements, it did not exercise the requisite discretion in sentencing appellant. See Mask v. McGuiness, 233 F.3d 132 (2nd Cir. 2000). As such, appellant's sentence did not comport with due process requirements. See People v. Farrar 52 N.Y.2d at 308. In sum, since the court did not exercise any discretion in imposing the surcharges on appellant, and since Court of Appeals' precedent mandates that a sentencing court always exercise its discretion at sentencing, this part of appellant's sentence should be found to be illegally imposed. Accordingly, this Court should remand this case for the court to properly exercise its discretion at sentencing. U.S. Const., Amend. XIV; N.Y. Const. Art. I, § 6. 4 However, unlike Farrar, here, the People would not be entitled to withdraw their consent to the plea if the trial court deferred payment of the surcharges, because that would still be within the scope of the original bargain. 7 CONCLUSION FOR THE REASONS SET FORTH ABOVE, APPELLANT'S CASE SHOULD BE REMANDED FOR THE COURT TO PROPERLY EXERCISE ITS DISCRETION AT SENTENCING. Respectfully submitted, STEVEN BANKS Attorney for Defendant- Appellant Kristina Schwarz Of Counsel June, 2013 8 ADDENDUM SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ---------------------------------------------------------------------J{ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANTHONY JONES, Defendant-Appellant. ---------------------------------------------------------------------J{ STATEMENT PURSUANT TO RULE 5531 1. The indictment numbers in the court below were 4456/11 and 5616111. 2. The full names of the original parties were The People of the State of New York against Anthony Jones. There has been no change of parties on appeal. 3. This action was commenced in Supreme Court, New York County. 4. This action was commenced by the filing of indictments. 5. This appeal is from a judgment convicting appellant, after a guilty plea under 4456/11, of criminal possession of a controlled substance in the third degree (P.L. § 220.16(1) and a judgment convicting 1A appellant, after a guilty plea under 561612011, of criminal sale of a controlled substance in the third degree (P.L. § 220.39(1)). 6. This appeal is from judgments of conviction both rendered on March 13,2012 (Solomon, J., at pleas and sentences). 7. Appellant has been granted permission to appeal as a poor person on the original record. The appendix method is not being used. 2A PRINTING SPECIFICATIONS STATErVlENT The word count for this brief is 1,556, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word. The brief is printed in Times New Roman, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 12 points in the footnotes. The line spacing is two.