The People, Respondent,v.Anthony Jones, Appellant.BriefN.Y.January 4, 2016I=~ THE I.~ .. LEGAL :::11 AID :: == 1 SOCIETY The Honorable Jonathan Lippman Chief Judge Court of Appeals Court of Appeals Hall Eagle Street Albany, New York 12207 Attn: Hon. Andrew W. Klein Your Honor: October 1, 2014 Criminal Appeals Bureau 199 Water Street New York, NY 10038 Tel: 212-577-3587 www.legal-aid.org Blaine (Fin) V. Fogg President Seymour W. James, Jr. Allorney-in-Charge Criminal Practice Re: People v. Anthony Jones APL-2014-00195 This constitutes appellant's submission pursuant to Rule 500.11 of this Court's Rules of Practice in accordance with the Clerk's letter, dated August 18,2014. 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. Here, the sentencing court mistakenly believed that it could not conduct a hardship hearing to decide whether to defer imposition of the mandatory surcharge. The court's mistaken belief violated appellant's due process rights at sentencing. Accordingly, this Court should remand appellant's case to the sentencing 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. §420AO governs the procedure for seeking deferral of the payment of mandatory surcharges due to financial hardship. Subdivision one of this statute, entitled "applicability," declares that the statute applies to the deferral of all surcharges imposed pursuant to P.L. §60.35(1). The statute contains no language limiting applicability to instances where the defendant has been issued a summons. Rather, the second subdivision of the statute creates a specific procedure for those criminal defendants who will remain in custody less than sixty days and are thus issued a summons for payment, but does not limit the availability of hardship hearings to those defendants. Indeed, since the collection of fees from defendants sentenced to more than 60 days is governed by P.L. §60.30, which gives full civil authority to courts charged with collecting those surcharges as part of the judgment of conviction, those courts are, contrary to the Appellate Division's holding below, statutorily authorized to conduct hardship hearings at the time of the imposition of the surcharge. Moreover, a motion for resentencing pursuant to C.P.L. §420.10(5) is not applicable to a request for deferral of the payment of surcharges as it applies only where a defendant is unable to pay a fine, restitution or reparation imposed as part of the sentence. Thus, requiring a post- sentencing motion for resentencing to be filed before entertaining a request for hardship deferral of payment, as the Appellate Division, First Department held in its decision below, is not only an unwieldy procedure, but does not adhere to the plain language of the statute. For these reasons, this Court must reverse the Appellate Division, First Department's erroneous ruling and issue a decision that assures that all eligible defendants can apply for hardship deferral of payment of surcharges, as authorized by our statutes. The Facts On February 14,2012, in New York County Supreme Court, appellant Anthony Jones entered guilty pleas on two separate indictments to satisfY each indictment. Appellant pleaded guilty to felony drug offenses on each indictment and the court promised to sentence him to concurrent terms of six months incarceration on each indictment. Additionally, it was agreed that appellant would forfeit the $334 that was taken from him when he was arrested. On March 13, 2012, appellant was sentenced, as promised, on both indictments. After the jail sentence and mandatory surcharge were imposed, the following exchange occurred: [Defense Attorney]: Your Honor, I ask the Court to consider deferring the surcharge. 2 [The Court]: I can't do it, the law doesn't allow it. If you look at the statute and cases, clearly, I can't do it. [Defense Attorney]: All right. [The Court]: If! could, I would. (Sentencing minutes, pp. 3-4). The Appellate Division Decision In his Appellate Division brief, appellant argued that his right to due process was violated because the court erroneously believed that it was obliged to impose the surcharges under any circumstances and that it was impermissible for the court to conduct a hardship hearing, even where the court believed that deferral of the surcharges was appropriate. The People responded that financial hardship hearings were only applicable to defendants sentenced to 60 days or less in jail and that appellant's only remedy was to apply for "resentencing" as provided by C.P.L. §420.1 0(5). The Appellate Division affirmed the conviction on March 11,2014, stating as follows: Since defendant was sentenced to a term of incarceration of longer than 60 days (see Penal Law §60.35(8)), he was required to seek relief from his mandatory surcharge payments by way of a CPL 420.10(5) motion for resentencing. Defendant's claims that he was entitled to a financial hardship hearing pursuant to CPL 420.40, and that the hearing should have been held at the time of his sentencing, are not supported by the applicable statutes. Rather, any application for relief from his surcharges is to be entertained in postsentence proceedings (see People v. Bradley, 249 AD2d 103 (lst Dept 1998), Iv denied 92 NY2d 923 (1989); People v. Wheeler, 244 AD2d 277 (1st Dept 1997)). 3 Argument 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 incorrectly that it lacked the power to do otherwise. This Court held that "a court must exercise its discretion at sentencing, notwithstanding that a sentence was negotiated at the time ofthe plea, and must be free to impose a lesser penalty if warranted" Id. at 308. P.L. §60.35 authorizes that mandatory surcharges should be "levied at sentencing ... in addition to any sentence required or permitted by law." P.L. 60.35(1)(a). By including the imposition of mandatory surcharges as part of a court's duties at sentencing, they become part of the fmal adjudication of the criminal action. Because ofthis, this Court has held that mandatory surcharges are part of a defendant's sentence for the purpose of appealability and reviewability. People v. Hernandez, 93 N.Y.2d 261,268 (1999). Thus, the issues raised in this appeal are properly before this Court. C.P.L. §420AO governs the procedure for seeking deferral of the payment of mandatory surcharges due to financial hardship. Subdivision one of this statute, an applicability provision, maintains that the statute applies to the deferral of surcharges imposed pursuant to P.L. §60.35(1). Of central importance to this appeal, the applicability provision of C.P.L. §420A0(1) does not distinguish those cases where the defendant is issued a summons pursuant to P.L. §60.35 1 at the time the fees are imposed, directing them to return to court 60 days later if the fees remain unpaid, from those cases where no summons was issued. Indeed, the applicability provision does not include any qualifications concerning eligibility to request deferral. Thus, the Appellate Division, First Department's contrary conclusion, finding that incarcerated defendants are not eligible for hardship deferral of payment, is erroneous. Additionally, C.P.L. §420.35(1) (authorizing the procedures for collecting mandatory surcharges, deferring mandatory surcharges and committing defendants to custody for failing to pay mandatory surcharges), specifies that the provisions of C.P.L. §420AO governing the deferral of I Although C.P.L. §420AO(2) refers to subdivision three of P.L. §60.35 as establishing the summons procedure, this appears to be an error. The correct subdivision is eight. 4 mandatory surcharges and financial hardship hearings are applicable to all mandatory fees imposed pursuant to P.L. §60.35. Once again, this applicability provision does not limit applicability only to those cases where a summons was issued to the defendant at sentencing. Thus, the decision rendered by the Appellate Division, First Department must be reversed, as it conflicts with the controlling statutes, as it is premised on a finding that financial hardship hearings are not available to defendants sentenced to more than sixty days confinement. Penal Law §60.35(8) provides that in cases where a criminal defendant is sentenced to 60 days or less of confinement, the defendant is issued a summons and directed to return to court 60 days later unless payment of the surcharge in full is made prior to that date. On the appearance date set in the summons, a defendant has the opportunity to seek deferral of the payment of the mandatory surcharges at a hardship hearing where the person would be required to present "credible and verifiable information" establishing that the surcharge fees should be deferred "because, due to the indigence of such person the payment of [the fees] would work an unreasonable hardship on the person or his or her immediate family." C.P.L. §420AO(2). Although the second subdivision of C.P.L. §420AO establishes a specific procedure for those criminal defendants who are issued a summons when they are sentenced, this cannot be interpreted to limit entitlement to hardship hearings and deferral of surcharge payment to only those cases, since the first subdivision of the statute authorizes application to all instances where a surcharge is imposed pursuant to P.L. §60.35(1). Penal Law §60.35(8) provides that a summons to make payment is not issued in cases where a criminal defendant is sentenced to more than 60 days of confinement. This provision was established because "a defendant who remains incarcerated sixty days after sentence is not expected to respond to court based upon service of a summons." People v. Pierce, 16 Misc.3d 1126(A) (Sup. Ct., N.Y. Co., 2007). In those cases, the statute specifies that the sentencing court is empowered by P.L. §60.30 to administer the mandatory surcharges and other mandatory fees. P.L. §60.30 gives courts the power to exercise civil authority "as part of the judgment of conviction" and provides them with the full power of civil authority. This authority includes the power to defer the payment of surcharges after being satisfied by credible and verifiable information that, due to indigence, their imposition would work an unreasonable hardship on the person or his or her 5 immediate family. Thus, those courts are, contrary to the Appellate Division's holding below, statutorily authorized to conduct hardship hearings at the time of the imposition of the surcharge. Finding otherwise would be tantamount to holding that the length of a defendant's sentence controlled a defendant's access to statutorily mandated relief. See People v. Pierce, supra, 16 Misc.3d 1126(A) (Sup. Ct., N.Y. Co., 2007) ("[A] restrictive view of the court's power to defer the surcharges of an incarcerated defendant ignores the authority expressly vested in the court by the terms ofPL §60.30."). Nevertheless, the court below found that sentencing courts are not empowered to conduct hardship hearings. Implicit in the court's decision was a recognition that the law must provide a procedure for authorizing the deferral of surcharges in appropriate cases for indigent, incarcerated defendants. However, the court incorrectly held that the method for seeking deferral in such cases was to wait until after sentencing to make an application for resentencing pursuant to C.P.L. §420.1 0(5). This decision ignores the mandates of C.P.L. §420A0(1), entitling all defendants subject to mandatory surcharges to a financial hardship hearing, and instead, holds that those individuals sentenced to more than 60 days of confinement must seek redress through the novel means of a post-judgment motion for resentencing as set forth in C.P.L. §420.10(5). However, C.P.L. §420.10(5) does not authorize such a post-judgment request for deferral of surcharge payment. The language of the statute refers to instances where a defendant is unable to pay a fine, restitution or reparation and is completely silent as to its applicability to instances where a defendant is unable to pay a mandatory surcharge. Other provisions of Article 420 of the Criminal Procedure Law refer specifically to their applicability to mandatory surcharges, thus the failure to include mandatory surcharges in the provisions of C.P.L. §420.l0(5) demonstrates that the provision was not intended to apply to such surcharges? 2 Article 420 of the Criminal Procedure Law discusses mandatory surcharges only in sections 420.05, 420.35 and 420.40. Although C.P.L. §420.35 incorporates the provisions of C.P.L. §420.l0 in its discussion of mandatory surcharges, it limits applicability to the provisions pertaining to "the collection of fines." Thus, C.P.L. §420.35 does not provide authorization to apply the resentencing provisions of C.P.L. §420.1O(5) to mandatory surcharges, as this subsection of the statute is unrelated to the collection of fines. 6 Furthermore, the procedure authorized by the Appellate Division, First Department in the decision below for seeking hardship payment deferral is cumbersome and unworkable. Instead of makinf a contemporaneous finding at the time of the imposition of the surcharge, the Appellate Division suggests requiring a later proceeding, requiring the filing of additional information with the court, and requiring defendants to be brought back to court for the hearing. Since the defendant must be indigent in order to qualify for deferral of payment, it stands to reason that the court would be required to assign counsel for this additional proceeding. Furthermore, delaying the procedure would work an injustice, since P.L. §60.35(5) authorizes the confining facility to immediately begin collecting the money owed from the inmates' fund. For that reason, a financial hardship hearing must be conducted at the time of sentencing, prior to the commencement of the term of imprisonment. Here, at appellant's sentencing, counsel requested that the court defer payment of the surcharge. In response, the court imposed the surcharges without conducting a hardship hearing, stating, "the law doesn't allow [the deferral of surcharges]" and "[i]f I could, I would" (S. 3-4). The court's statements make it clear that the court mistakenly believed, as did the court in Farrar, that it had no choice other than to impose the surcharges on appellant, even if it had reservations in doing so. To the 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, supra, 52 N.Y.2d at 308. 3 Note that in an analogous situation, C.P.L. §420.35(I) requires a "contemporaneous finding" concerning hardship before imprisoning a defendant for failure to pay a mandatory surcharge. Thus the Criminal Procedure Law gives precedent to sentencing courts conducting hardship hearings. , 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 In sum, since this Court's precedent requires that a sentencing court exercise its discretion at sentencing and since the sentencing court did not exercise any discretion in imposing the surcharges on appellant because it mistakenly believed it did not have the authority to do so, 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 a hardship hearing as specified in C.P.L. §420.40. U.S. Const., Amend. XIV; N.Y. Const. Art. I, § 6. cc: Hon. Cyrus R. Vance, Jr. District Attorney New York County One Hogan Place New York, New York 10013 Attn: ADA Sheila Bautista Very truly yours, KRISTINA SCHWARZ Associate Appellate Counsel 8