The People, Respondent,v.Anthony Jones, Appellant.BriefN.Y.January 4, 2016To be argfled i!Y NAOMI C. REED ..1l.eb.1 ~Otk ~Upteme (!Court Appellate Division - First Department THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- ANTHONY JONES, Difendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE,JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 (212) 335-9000 danyappeals@dany.nyc.gov NAOMI C. REED ASSISTANTDIS11UCT A1TORNEY Of COlli/scI TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION ................................................................................................................ 1 THE RELEVANT RECORD ............................................................................................. 3 POINT THE COURT PROPERLY DENIED DEFENDANT'S REQUEST FOR A DEFERRAL OF THE MANDATORY SURCHARGES ................................................................. 6 CONCLUSION ................................................................................................................... 13 TABLE OF AUTHORITIES STATE CASES People v. Abdus-S amad, 274 AD .2d 666 (3rd Dept. 2000) ................................................ 11 People v. CamadJo, 4 AD.3d 862 (4th Dept. 2004) ........................................................ 11-12 People v. Kistner, 291 AD.2d 856 (4th Dept. 2002) ....................................................... 11-12 People v. Quinones, 95 N.Y.2d 349 (2000) ........................................................................ 7, 10 STATE STATUTES CPL 420.10 .............................................................................................................................. 9 CPL 420.10(5) ................................................................................................................ 7,9-11 CPL 420.10(6) ......................................................................................................................... 9 CPL 420.35(1) ......................................................................................................................... 9 CPL 420.35(2) ....................................................................................................................... 10 CPL 420.40 ..................................................................................................................... 7-9,11 CPL 420.40(2) ............................................................................................................. 8,10,12 CPL 420.40(3) ....................................................................................................................... 10 CPL 420.40(5) ................................................................................................................... 8, 10 McK.inney's 1995 Session Laws, ch 3, § 67 ....................................................................... 10 McKinney's 1995 Session Laws, ch 3, § 68 ....................................................................... 10 NYS Legislative Annual 1982 ............................................................................................. 10 Parks, Recreation, and Histone Preservation Law ............................................................. 7 Penal Law § 60.30 ................................................................................................................... 9 Penal Law § 60.35 ..................................................................................................... 3, 6, 8, 10 -11- Penal Law § 60.35(1)(a) .......................................................................................................... 7 Penal Law § 60.35(5) .............................................................................................................. 8 Penal Law § 60.35(5)(a) ........................................................................................................ 10 Penal Law § 60.35(8) ........................................................................................................... 8-9 Penal Law § 220.09(1) ............................................................................................................ 3 Penal Law § 220.16(1) ........................................................................................................ 1, 3 Penal Law § 220.39(1) ........................................................................................................ 1, 3 State Exec. Dept., McKinney's 1983 Session Laws ........................................................... 7 Vehicle and Traffic Law § 1809 ............................................................................................ 7 -iii- SUPREME COURT OF THE STATE OF NEW YORK: APPELLATE DMSION: FIRST DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORI<, Respondent, -against- ANTHONY JONES, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION Defendant Anthony Jones appeals from two March 13, 2012 orders of the Supreme Court, New York County (Charles Solomon, J.). The flrst order convicted him, upon his plea of guilty, of Criminal Possession of a Controlled Substance in the Third Degree (penal Law § 220.16[1]) (narcotic with intent to sell). The second order convicted him, upon his plea of guilty, of Criminal Sale of a Controlled Substance in the Third Degree (penal Law § 220.39[1]) (narcotic). Defendant was sentenced on each crime to a deflnite jail term of six months, with these sentences to run concurrently with one another. Defendant has served his sentence. On September 4,2011, at about 7:15 p.m., New York City Police Offlcer Brian Green saw defendant urinating in front of a bodega located at 2240 7th Avenue, in Manhattan. 1 Officer Green stopped defendant and got defendant's name. A search of police records revealed that defendant was wanted on an outstanding bench warrant. Officer Green accordingly placed defendant under arrest. In a search subsequent to that arrest, he discovered that defendant was carrying 59 small bags- or "zips"-of crack cocaine. On November 29, 2011, at 3:55 p.m., Undercover Police Officer 0016 entered the bodega located at 2240 7th Avenue in Manhattan. Defendant was inside. UC 0016 asked defendant if defendant "had any," and handed defendant $10 in pre- recorded buy money. Defendant instructed UC 0016 to go to the back of the store. There, defendant reached into the crotch of his pants and pulled out a bag. He reached inside that bag and pulled out a single "rock" of crack cocaine, which he then handed to UC 0016. UC 0016 took the crack, left the store, and then radioed his field team that a buy had taken place. Members of the field team went into the bodega and arrested defendant. In a search of defendant incident to that arrest, officers recovered five rocks of crack cocaine from inside of defendant's underwear. They also recovered $334. On September 8, 2011, defendant was charged by New York County Indictment Number 4456/2011 with Criminal Possession of a Controlled Substance 1 This summary of the crimes is culled from the Criminal Court Complaints and the People's Voluntary Disclosure Forms. -2- in the Third Degree (penal Law § 220.16[1]) (narcotic with intent to sell) and Criminal Possession of a Controlled Substance in the Fourth Degree (penal Law § 220.09[1]) (one-eighth ounce or more of narcotic) based on the events of September 4,2011. On December 5, 2011, defendant was charged by New York County Indictment Number 5616/2011 with Criminal Sale of a Controlled Substance in the Third Degree (penal Law § 220.39[1]) (narcotic) and Criminal Possession of a Controlled Substance in the Third Degree (penal Law § 220.16[1]) (narcotic with intent to sell) based on the events of November 29, 2011. On February 14, 2012, defendant appeared before the Honorable Charles Solomon. He pleaded guilty to third-degree criminal possession of a controlled substance, in full satisfaction of Indictment 4456/2011, and pleaded guilty to third- degree criminal sale of a controlled substance, in full satisfaction of Indictment 5616/2011. On March 13, 2012, defendant was sentenced as noted above. At sentencing, the court imposed on defendant the mandatory surcharges required under Penal Law § 60.35. On appeal, defendant contends that the court erred in rejecting his request at sentencing to defer the mandatory surcharges. THE RELEVANT RECORD On February 14, 2012, defendant appeared with counsel before Justice Solomon. Defense counsel asked the court if it would consider sentencing defendant -3- to probation (plea: 2-3). The People, defense counsel continued, were recommending a "six-month split" (plea: 3). The court responded that it did not want to "have a problem" with defendant violating probation, and noted that defendant had been out on bail when he was arrested on September 4, 2011 (plea: 3). "That [was] why," the court explained, defendant was "in jail" pending a disposition in his case (plea: 3). The court remarked that it would, however, consider imposing a definite sentence (plea: 4). The court adjourned defendant's case to later in the day to give defendant and his counsel time to consider that possibility (plea: 4). When defendant's case was re-called, the prosecutor asked the court for a "forfeiture stipulation"-requiting defendant to forfeit the $334 recovered from him subsequent to his November 29, 2011 arrest-to be part of any plea agreement (plea: 5). Defense counsel indicated that the forfeiture "w[ould] not be a problem" (plea: 5). After an off-the-record bench conference, defense counsel stated that defendant had authorized him to enter a plea of guilty to third-degree criminal possession of a controlled substance, in full satisfaction of Indictment 4456/2011, and to enter a plea of guilty to third-degree criminal sale of a controlled substance, in full satisfaction of Indictment 5616/2011 (plea: 5). Defendant entered these pleas on the understanding that he would receive a six-month jail sentence for each conviction, with these sentences to run concurrently to one another (plea: 6). Defense counsel also asked the court to consider running these sentences nunc pro tunc (plea: 6). The court agreed (plea: 6). -4- The court asked defendant if he did, in fact, wish to plead guilty (plea: 6-7). Defendant assured the court that he did (plea: 7). In response to the court's questions, defendant also assured the court that he had discussed his decision to plead guilty with his attorney (plea: 7). Defendant then admitted that, in regard to Indictment 4456/2011, on September 4, 2011, in New York County, he possessed cocaine with the intent to sell it (plea: 7). Defendant further admitted, in regard to Indictment 5616/2011, that on November 29, 2011, in New York County, he knowingly and unlawfully sold cocaine to an undercover2 police officer (plea: 7). The court reviewed the promised sentence for defendant (plea: 7-8). In response to the court's questions, defendant assured the court that no one had forced him to plead guilty, and that no promise other than the agreed upon sentence and forfeiture stipulation had been made to him in exchange for his plea (plea: 8). Defendant also acknowledged, in response to the court's explanation of the consequences of a guilty plea, that he understood that by pleading guilty he was giving up his right to a ttial, to cross-examine witnesses, and to remain silent (plea: 8). The court then formally accepted defendant's guilty pleas (plea: 8). On March 13, 2012, defendant, defense counsel, and the People appeared before Justice Solomon for sentencing. The People and defense counsel relied on the 2 The transcript mistakenly reads "an ullcovered police officer" (plea: 7) (emphasis added). -5- promised sentence (Sentencing: 2). Defendant was given an opportunity to address the court but declined to comment (Sentencing: 3). The court then sentenced defendant as promised and imposed the mandatory surcharges (Sentencing: 3). Defense counsel asked the court to "consider deferring the surcharge" (Sentencing: 3). Justice Solomon explained that although "[i]f [he] could, [he] would," the statute and cases "clearly" did not allow him to defer imposition of the surcharges (Sentencing: 3-4). POINT THE COURT PROPERLY DENIED DEFENDANT'S REQUEST FOR A DEFERRAL OF THE MANDATORY SURCHARGES (Answering Defendant's Brief). On appeal, defendant contends that the sentencing court improperly denied his request to defer payment of the mandatory surcharges imposed pursuant to Penal Law § 60.35. That denial was improper, he argues, because the court based it on the erroneous belief that it did not have the authority to gtant defendant's request (Defendant's Brief: 4). Defendant's claim is based on two, related assertions. Defendant first asserts that, although he was sentenced to more than 60 days' imprisonment, he was still entitled to a hearing about deferring payment of the surcharges (Defendant's Brief: 5). Second, he asserts that this hearing should have been contemporaneous with his sentencing (Defendant's Brief: 6-7). Because -6- defendant did not receive the contemporaneous hearing to which he believes he was entided, he asks for his case to be remanded "to the trial court for that court to properly exercise its discretion" (Defendant's Brief: 5). To begin, at sentencing defendant did not even attempt to making a showing of indigency or hardship that would justify a deferral. He merely made an unelaborated request for the surcharges to be deferred (see Sentencing: 2). In any event, a careful reading of the relevant statutes demonsttates that the sentencing court in fact had no power to defer the surcharge payment at the time of sentencing. Defendant can seek that relief only through a separate motion pursuant to CPL 420.10(5) if he proves to be unable to pay the surcharges out of his inmate account. Under Penal Law § 60.35(1)(a), a sentencing court must impose "mandatory surcharges" on all defendants convicted of a felony, misdemeanor, or violation.3 The purpose of these charges is "to shift [the] costs of providing [criminal justice] services from 'law abiding taxpayers and toward those who commit crimes.'" People v. Quinones, 95 N.Y.2d 349, 352 (2000) (quoting Mem. of State Exec. Dept., McKinney'S 1983 Session Laws of NY, at 2356). Criminal Procedure Law 420.40 provides for "financial hardship hearings" at which defendants can seek deferral of these surcharges. However, CPL 420.40 3 Vehicle and Traffic Law offenses and violations of the Parks, Recreation, and Historic Preservation Law are excepted, because they are subject to separate surcharge provisions outlined in VTL § 1809 and PRHP § 27.12, respectively. -7- applies only to defendants sentenced to 60 days or less in jail. Specifically, CPL 420.40 provides defendants with the opportunity to have a hardship hearing, to take place on a date specified in a special type of summons referenced in Penal Law § 60.35. Under Penal Law § 60.35(8), the sentencing court "shall issue" a summons to any defendant sentenced to 60 days or less in jail. That summons directs such a defendant to appear before the court if, after 60 days from the date of imposition, the surcharge and fees remain unpaid. Penal Law § 60.35(8). At that appearance, a defendant can request that the court defer the surcharge. If the defendant demonstrates hardship by "credible and verifiable information," the court may issue an order deferring all or some of the fees. CPL 420.40(2), (5). On the other hand, Penal Law § 60.35(8) expressly instructs sentencing courts that they "shall not" issue such a summons to a defendant sentenced to more than 60 days' imprisonment. Instead, if such a defendant has not paid the surcharges by sentencing, the clerk of the sentencing court "shall notify" the superintendent of the facility where the defendant will be imprisoned of defendant's unpaid balance. Penal Law § 60.35(5).4 The State is then "legally entitled" to collect the surcharges from the inmate's fund held by the superintendent of the facility. 5 Id. 4 As of September 1, 2013, the language of Penal Law § 60.35(5) was changed, combining former subsections (a) and (b), and making other minor alterations not relevant here. 5 The inmate's fund includes any money the inmate possessed when he entered prison, any money he earns while in prison, and "any other funds received by him" while in (Continued ... ) -8- Should this financial arrangement prove too onerous for a defendant, he can apply for "resentencing" pursuant to Criminal Procedure Law 420.10(5).6 Although titled an "Application for Resentence," a motion pursuant to Criminal Procedure Law 420.10(5) in fact functions like a CPL 420.40 flnancial-hardship hearing.7 The defendant is allowed to present evidence of his financial circumstances, and based on that evidence, the hearing court can adjust a defendant's payment te=s and also convert a surcharge debt into a civil judgment. CPL 420.10(5), (6); see Penal Law § 60.30 (reserving for criminal courts power to impose civil penalties). As the statutes thus make plain, a sentencing court has no discretion to defer a defendant's payment of the surcharges. The role of the sentencing court is, instead, merely to impose those surcharges, with payment issues to be handled at separate, later hearings. For defendants sentenced to 60 days or less in jail, Penal Law § 60.35(8) and CPL 420.40 together provide them the opportunity to have a deferral hearing 60 days after sentencing. For defendants sentenced to more than 60 days in ( ... Continued) custody. Id. 20% of the inmate's payroll receipt and 50% of money received from an outside source can be retained to cover the cost of the mandatory surcharge and fees. See Department of Corrections and Community Services ("DOCS"), Ditective No. 2788 [Collection & Repayment of Inmate Advances & Obligations], at Sections IV(B)(3) (a), VI(A), VI(C)(l) (Feb. 16,2010 revision). 6 Although the provisions of CPL 420.10 refer specifically to the collection of "fines, restitution, or reparation," they are fully applicable to surcharges pursuant to CPL 420.35(1). 7 A CPL 420.10(5) resentencing hearing is available not just to inmates but to all defendants. This provision thus ensures that all defendants can obtain a financial hardship hearing at any point should their financial circumstances make payment too onerous. -9- jail, Penal Law § 60.35(5)(a) requires that the surcharges be paid through the defendants' inmate funds, while CPL 420.10(5) allows defendants to petition for resentencing should that financial arrangement be too onerous. The separation of sentencing from these two kinds of financial-hardship hearings is wholly in keeping with the legislative purpose behind surcharges. Surcharges were designed to raise revenue by passing the costs of crime on to the criminals themselves. See Quinones, 95 N.Y.2d at 352. Accordingly, they were first incorporated into the Penal Law (as Penal Law § 60.35) in 1982 not as part of a crime bill, but rather as part of an omnibus budget bill. See NYS Legislative Annual 1982 at 34. In the first incarnation of the surcharge statutes, indigent defendants could entirely avoid payment of the mandatory surcharge by filing a motion seeking a "waiver." See CPL 420.35(2) (McKinney's 1994 ed.). In 1995, however, the Legislature replaced the "waiver" mechanism with the "deferral" mechanisms outlined above, in a clear effort to ensure that more defendants remained liable for their debts. See McKinney's 1995 Session Laws, ch 3, § 67 (repealing subsections 2, 3, and 5 of CPL 420.35, which permitted the court to "waive" the mandatory surcharge); McKinney's 1995 Session Laws, ch 3, § 68 (amending the re-numbered subsection 2 of CPL 420.35 to state that ''Under no circumstances shall the mandatory surcharge or the crime victim assistance fee be waived"). With the Legislature'S clear intent to close payment loopholes, the statutory insistence that deferral requests be handled separately from and after sentencing -10- makes perfect sense. The time between sentencing and a flnancial-hardship hearing provides defendants time to raise funds and the state time to collect payment. Further, the clear separation between sentencing and flnancial-hardship hearings ensures that defendants' deferral applications are not handled merely as an afterthought, but are instead given the particular attention they deserve. Here, defendant was sentenced to a term of incarceration longer than 60 days. Accordingly, he was required to seek a deferral of his surcharge payments by a CPL 420.10(5) motion for resentencing. Defendant's contrary insistence that he was entitled not only to a fmancial-hardship hearing pursuant CPL 420.40, but also that that hearing should have been contemporaneous with his sentencing is thus based on a misreading of or failure to read the applicable statutes. Those statutes make clear that the sentencing court does not have discretion to defer any defendant's payment of the mandatory surcharge. Instead, all alterations to a defendant's surcharge payment obligations are clearly to be handled in hearings distinct from and after sentencing: a CPL 420.40 flnancial-hardship hearing for inmates sentenced to 60 days' or less incarceration, and a CPL 420.10(5) resentencing hearing for inmates, like defendant, sentenced to more than 60 days' incarceration. 8 8 Defendant cites to People v. Camat'ho, 4 AD.3d 862 (4th Dept. 2004), People v. Kistner, 291 AD.2d 856 (4th Dept. 2002), and People v. Abdlls-Samad, 274 A.D.2d 666 (3rd Dept. 2000) to support his claim (see Defendant's Brief at 5-6). In each case, the court rejected the incarcerated defendant's claim that the surcharge should have been deferred or waived, because the defendant made an insufficient showing of indigency or hardship. Here, too, (Continued ... ) -11- In sum, the sentencing court properly rejected defendant's request to defer payment of his surcharges because it lacked the discretion to alter defendant's payment terms. ( ... Continued) defendant has failed to make any such showing, much less a sufficient one. Camacho and Kistmr state in dicta that the sentencing court did have authority to defer the surcharge, with Kistner citing CPL 420.40(2) as support for that proposition, and Camacho citing no authority whatsoever. As demonstrated above, however, a sentencing court has no such power; it is only at later proceedings that deferral or alteration of surcharge payments can be addressed. -12- CONCLUSION The judgment of conviction should be affIrmed. NAOMI C. REED Assistant District Attorney Of Counsel January 2013 Respectfully submitted, CYRUS R. VANCE,JR. District Attorney New York County danyappeals@dany.nyc.gov -13- PRINTING SPECIFICATIONS STATEl\1ENT The word count for this brief is 2826, 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 2010. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.