The People, Respondent,v.Anthony Jones, Appellant.BriefN.Y.January 4, 2016 DISTRICT ATTORNEY COUNTY OF NEW YORK ONE HOGAN PLACE New York, N. Y. 10013 (212) 335-9000 CYRUS R. VANCE, JR. DISTRICT ATTORNEY November 18, 2014 Honorable Andrew W. Klein Clerk of the Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207-1095 Re: People v. Anthony Jones APL-2014-00195 Dear Mr. Klein: I submit this letter in opposition to defendant’s submission in the referenced case, pursuant to this Court’s designation of this appeal for examination of the merits under Rule 500.11 of the Court of Appeals. The People do not object to consideration of this appeal under that Rule. By permission of the Honorable Eugene F. Pigott, Associate Judge of this Court, granted on July 21, 2014, defendant Anthony Jones appeals from an order of the Appellate Division, First Department, dated March 11, 2014. The Appellate Division’s order unanimously affirmed a judgment of the Supreme Court, New York County (Charles H. Solomon, J.), rendered March 13, 2012, convicting defendant, upon his pleas of guilty, of third-degree criminal sale of a controlled substance and third-degree criminal possession of a controlled substance. Defendant was sentenced to concurrent D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 2 November 18, 2014 terms of six months in jail. Defendant has completed that sentence and is currently at liberty. The question before this Court is whether a court has the authority to defer the mandatory surcharge at sentencing. As the Appellate Division correctly determined below, the answer is no. The plain language and legislative history of the statutes governing the mandatory surcharge fully support the Appellate Division’s determination. Both demonstrate that the Legislature gives priority to collecting the mandatory surcharge from defendants over granting sentencing courts discretion to relieve them from their financial obligation. RELEVANT PROCEEDINGS Defendant’s convictions arose from his possession of 59 bags of crack cocaine and a subsequent narcotics sale to an undercover officer. On February 14, 2012, defendant appeared before Justice Solomon and pleaded guilty to one count each of third-degree criminal possession of a controlled substance and third-degree criminal sale of a controlled substance. In exchange for his guilty plea, the court promised to sentence defendant to concurrent six-month terms in jail. On March 13, 2012, defendant appeared with counsel before Justice Solomon for sentencing. Defendant agreed to a forfeiture of $334. The court sentenced defendant as promised and imposed the mandatory surcharges as required by Penal Law § 60.35. Defense counsel asked the court to “consider deferring the surcharge.” Justice Solomon denied the request because “clearly,” based on “the statute and the cases,” “the law doesn’t allow it.” The judge added that if he “could,” he “would” consider defendant’s request for a deferral (Sentencing: Defendant’s Appendix at A5- A7). On appeal to the Appellate Division, defendant argued that the sentencing judge erroneously believed that he had no authority to defer the mandatory surcharges at sentencing. Defendant contended that at sentencing, he was entitled to a CPL 420.40 financial hardship hearing about deferring the payment of the mandatory surcharge. The People argued that the statutes governing the imposition and deferral of the mandatory surcharge supported Justice Solomon’s determination that he did not have the authority to entertain any requests to defer the mandatory surcharge at sentencing. The Appellate Division unanimously ruled that 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 D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 3 November 18, 2014 statutes.” People v. Jones, 115 A.D.3d 490, 491 (1st Dept. 2014). Citing Penal Law § 60.35(8), the court found that because defendant was sentenced to a term of incarceration longer than 60 days, he “was required to seek relief from his mandatory surcharge payments by way of a CPL 420.10(5) motion for resentencing.” Jones, 115 A.D.3d at 490-91. Thus, the court ruled, “any application for relief from his surcharges is to be entertained in postsentence proceedings.” Jones, 115 A.D.3d at 491, citing People v. Bradley, 249 A.D.2d 103 (1st Dept. 1998); People v. Wheeler, 244 A.D.2d 277 (1st Dept. 1997). On appeal to this Court, defendant continues to insist that he was entitled to a CPL 420.40 financial hardship hearing at sentencing (Defendant’s Letter at 1-2, 4-5). In support of this argument, he raises a newfound claim that Penal Law § 60.30 grants the sentencing court the authority to defer the mandatory surcharge at sentencing (Defendant’s Letter at 5-6). Defendant also argues for the first time that CPL 420.10(5) is not the proper mechanism for a defendant to seek relief from the imposition of the mandatory surcharge (Defendant’s Letter at 6-7). ARGUMENT The plain language and legislative history of the statutes governing the mandatory surcharge demonstrate that the Appellate Division correctly determined that a sentencing court has no discretion at sentencing to defer payment of the surcharge. Penal Law § 60.35(1)(a) expressly commands that: whenever proceedings in an administrative tribunal or a court of this state result in a conviction for a felony, a misdemeanor, or a violation, as defined in section 10.00 of this chapter, there shall be levied a mandatory surcharge, sex offender registration fee, DNA databank fee and a crime victim assistance fee in addition to any sentence required by law (emphasis added).1 The plain language of the statute is unambiguous: the court must impose the mandatory surcharge at sentencing. Penal Law § 60.35 contains no language 1 The mandatory surcharge is $300 for a felony, $175 for a misdemeanor, and $95 for a violation. Penal Law § 60.35(1)(a)(i)-(iii). D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 4 November 18, 2014 that authorizes the court to exercise its discretion to grant any relief from the mandatory surcharge at sentencing. The legislative history of the relevant statutes makes plain that the Legislature did not want to empower sentencing courts to waive or defer the surcharge. In 1982, the Legislature introduced the mandatory surcharge to raise money to assist victims of crime, who incur costly medical expenses because of defendants’ actions, and who also sustain losses to “essential personal property,” such as “eyeglasses, medication, hearing aids, prosthetic devices or similar aids or devices.”2 Accordingly, to raise money to assist victims with these crime-induced expenses, the Legislature enacted the mandatory surcharge “to shift costs of providing services to victims of crime from ‘law abiding taxpayers and toward those who commit crimes.’” People v. Quinones, 95 N.Y.2d 349, 352 (2000). To further the ability to collect the surcharge, in 1983, Penal Law § 60.35 was amended to require the collection of the mandatory surcharge from inmate accounts.3 See Penal Law § 60.35(5). Although judges formerly had the power to waive the mandatory surcharge, statistics suggested that there was a “widespread belief among judges that these surcharges [were] discretionary while, in fact, they are mandatory.”4 During the first six months of fiscal year 1992-1993, the mandatory surcharge was waived or remitted in nearly 80 percent of cases in the busiest courts in New York state.5 Accordingly, “to limit what has become perceived as the routine remission and waiver in some cases of surcharges and victim assistance fees intended to be mandatory,” in 1992, the Legislature added the following language to CPL 420.35: “In determining whether to waive all or part of a mandatory surcharge . . . . the court or administrative tribunal shall be mindful of the mandatory nature of the surcharge and the important criminal justice and victim services sustained by such fee.”6 In 1995, the mandatory surcharge became truly mandatory when the Legislature eliminated judicial discretion to waive or remit the mandatory surcharge.7 Specifically, it amended CPL 420.35(2) to read, as it does 2 L. 1982, c. 55, § 18; Memorandum of the State Executive Department, McKinney’s 1983 Session Laws of New York, Vol. 2 at 2357. 3 L. 1983, c. 15, § 2. 4 L. 1992, c. 794, Bill Jacket at 10. 5 Id. 6 L. 1992, c. 794, Bill Jacket at 14. 7 L. 1995, c. § 3, §§ 66-69. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 5 November 18, 2014 now, “Under no circumstances shall the mandatory surcharge, sex offender registration fee, DNA databank fee or the crime victim assistance fee be waived . . . .”8 CPL 420.30(3) was likewise amended: “In no event shall a mandatory surcharge or crime victim assistance fee be remitted.” The history of the mandatory surcharge thus reveals that the Legislature did not want to excuse defendants easily from contributing to the financial losses sustained by the victims of their crimes. Indeed, the Legislature took affirmative steps to stamp out prior efforts by sentencing courts to relieve defendants of the obligation to pay the surcharge. Accordingly, though defendant complains that waiting to seek deferral of the surcharge until after sentencing is an “unwieldy” and “cumbersome” procedure (Defendant’s Letter at 7), the Legislature wanted to make it difficult, if not impossible, for sentencing courts to permit defendants to avoid being held financially accountable for making their victims whole. The Legislature enacted additional statutes to ensure that the mandatory surcharge is not just imposed, but also collected. When a defendant fails to pay it, Penal Law § 60.35(5) mandates the following: the clerk of the court that rendered the conviction shall notify the superintendent or the municipal official of the facility where the person is confined. The superintendent or the municipal official shall cause any amount owing to be collected from such person during his or her term of imprisonment from moneys to the credit of an inmates’ fund or such moneys as may be earned by a person in a work release program. The statute further contemplates that collection of the mandatory surcharge begin as soon as defendant begins his incarceratory sentence: the “state shall be legally entitled to the money to the credit of an inmate’s fund,” which includes “moneys in the possession of an inmate at the time of his or her admission into such facility.” Penal Law § 60.35(5) (emphasis added). These provisions demonstrate that it is not an “injustice” to prevent sentencing judges from deferring payment of the mandatory surcharge, because it would permit the state to start collecting the surcharge 8 The statute does provide two exceptions: a waiver of the mandatory surcharge is permissible if the defendant is adjudicated a youthful offender or found to be the victim of sex trafficking. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 6 November 18, 2014 immediately from the inmate’s fund (Defendant’s Letter at 7). Rather, that is an intentionally designed feature of the system the Legislature established. Nonetheless, the Legislature did provide, in limited circumstances, for a defendant to seek relief from the mandatory surcharge should paying it pose an unreasonable hardship, as detailed below. Even then, though, several provisions reinforce the mandatory nature of the surcharge. Beyond CPL 420.35(2)’s flat declaration that the surcharge cannot be waived, when determining whether to grant a deferral request, CPL 420.40(3) exhorts that “the superior court shall be mindful of the mandatory nature of the surcharge.” Moreover, when a court grants a defendant’s request to defer the mandatory surcharge, “[s]uch order shall not excuse the person from the obligation to pay the surcharge.” CPL 420.40(5). As these statutes governing the imposition, collection, and deferral of the mandatory surcharge make clear, the primary goal of the Legislature is to ensure that defendants fulfill their financial obligation. Accordingly, before granting deferral, courts require defendants to show that payments of the mandatory surcharge would impose an unreasonable hardship “over and above the ordinary hardship suffered by other indigent inmates.” People v. Larose, 2014 N.Y. Slip Op. 06017, at *2 (3d Dept. 2014); see People v. Johnson, 60 A.D.3d 1496, 1497 (4th Dept. 2009). For some defendants, the procedure for seeking deferral of the mandatory surcharge is set forth in CPL 420.40. Pursuant to CPL 420.40(2), these hearings are commenced as follows: On an appearance date set forth in a summons issued pursuant to subdivision three of section 60.35 of the penal law9 . . . . a person upon whom a mandatory surcharge, sex offender registration fee or DNA databank fee was levied shall have an opportunity to present on the record credible and verifiable information establishing that the mandatory surcharge, sex offender registration fee or DNA databank fee should be deferred, in whole or in part, because, due to the indigence of such person the payment of said surcharge, 9 As defendant correctly notes (Defendant’s Letter at 4, n. 4), CPL 420.40’s reference to a summons issued pursuant to Penal Law § 60.35(3) is in error. Penal Law § 60.35(8) is the applicable subdivision governing the issuance of the summons for the financial hardship hearing. D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 7 November 18, 2014 sex offender registration fee or DNA databank fee would work an unreasonable hardship on the person or his or her immediate family. Id. The Penal Law § 60.35 summons that commences a CPL 420.40 hardship hearing is issued “if after sixty days from the date [the mandatory surcharge] was imposed it remains unpaid.” Penal Law § 60.35(8). Moreover, The designated date of appearance on the summons shall be set for the first day court is in session falling after the sixtieth day from the imposition of the mandatory surcharge, sex offender registration fee or DNA databank fee, crime victim assistance fee or supplemental sex offender victim fee. Id. Thus, a financial hardship hearing can only occur after sentencing; specifically, no sooner than 60 days after the surcharge is imposed. However, CPL 420.40 financial hardship hearings are not available to defendants sentenced to more than 60 days of incarceration. Defendant contends otherwise because CPL 420.40(1) does not expressly so provide (Defendant’s Letter at 1-2, 4-5). Initially, even if he were right, that would not aid him in his claim that the sentencing judge wrongly thought he had no power to grant a deferral at sentencing. That is because nothing in CPL 420.40 authorizes a grant of deferral at sentencing. On the contrary, as demonstrated, under the relevant statutes, the first opportunity for a hearing is 60 days after the imposition of the surcharge at sentencing. In any event, no CPL 420.40 hearing was available to defendant at any time. CPL 420.40(1) itself says that “[t]he proceedings specified in” CPL 420.40 “governs the deferral of a surcharge.” CPL 420.40(2) requires a summons pursuant to Penal Law § 60.35 be issued to trigger a hearing. And, Penal Law § 60.35(8) expressly provides that “the court shall not issue a summons under this subdivision to a person who is being sentenced to a term of confinement in excess of sixty days” (emphasis added). By incorporating Penal Law § 60.35, then, CPL 420.40 makes financial hardship hearings entirely unavailable to defendants sentenced to more than 60 days. Yet defendants who receive longer sentences are not entirely without a procedure for seeking relief. CPL 420.35(1) makes the provisions of CPL 420.10 applicable to the mandatory surcharge. Accordingly, defendants who are unable to pay the mandatory D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 8 November 18, 2014 surcharge may seek its deferral by way of a motion to be resentenced under CPL 420.10(5). Contrary to defendant’s newfound objections, there is nothing “novel” or incorrect about employing resentencing motions in this context (Defendant’s Letter at 2, 6). Defendant points out that CPL 420.10(5) states that a defendant who is unable to pay “a fine, restitution or reparation” can seek resentencing, but does not list defendants who cannot pay surcharges. But that is immaterial, because CPL 420.35(1) itself states that CPL 420.10 applies to mandatory surcharge. Not surprisingly, then, courts have consistently recognized CPL 420.10(5) resentencing motions as the appropriate vehicle for seeking relief from the mandatory surcharge. See Jones, 115 A.D.3d at 491; People v. Mustafa, 178 A.D.2d 616, 617 (2d Dept. 1991) (“the appropriate procedural vehicle for raising a claim of undue hardship is to move in the Supreme Court for resentencing”); see also People v. Snell, 161 A.D.2d 1125, 1125 (4th Dept. 1990); People v. Dunn, 254 A.D.2d 511, 512 (3d Dept. 1998). Moreover, given the Legislature’s insistence that defendants pay the mandatory surcharge, the statutory scheme for its collection and deferral is incompatible with defendant’s view that a court may grant relief from its imposition at sentencing under any procedural vehicle. For instance, according to CPL 420.10(5), a court “shall not” determine a defendant’s inability to pay the mandatory surcharge “solely because of such defendant’s incarceration.” Additionally, defendant’s contrary rule would thwart Penal Law § 60.35(5)’s mandate that the clerk of the sentencing court notify the superintendent of defendant’s correctional facility if defendant has not paid the mandatory surcharge so that the money can be collected from his inmate account. It is thus premature for a defendant to seek relief from the mandatory surcharge while incarcerated, because he “may pay such amount from his earnings while in prison or from funds in his inmate account,” just as Penal Law § 60.35(5) requires. People v. Arthur, 234 A.D.2d 792, 793 (3d Dept. 1996); accord, People v. Lowery, 185 A.D.2d 364, 365 (2d Dept. 1992); People v. Olivo, 156 Misc.2d 149, 152 (Sup. Court, Kings Co. 1992); People v. West, 124 Misc.2d 622, 625 (Co. Court, Yates County 1984). Accordingly, the Appellate Divisions unanimously agree that a “challenge to the imposition of the mandatory surcharge should be raised in the sentencing court by way of a motion for resentencing at the end of a defendant’s incarceration.” People v. Williams, 113 A.D.3d 423, 424 (1st Dept. 2014); accord, People v. Mack, 237 A.D.2d 535, 535 (2d Dept. 1997); People v. Mejia, 191 A.D.2d 844, 844 (3d Dept. 1993); Snell, 161 A.D.2d at 1125. Indeed, by employing the 60-day summons procedure set forth in D I S T R I C T A T T O R N E Y C O U N T Y O F N E W Y O R K 9 November 18, 2014 Penal Law § 60.35(8) to fix the date for a CPL 420.40 financial hardship hearing, the Legislature precluded individuals sentenced to 60 days or less of incarceration from obtaining a deferral while still in custody. This procedural barrier underscores that fee deferment applications are untimely until a defendant has completed his prison term and is no longer subject to the legislatively-designed fee collection system. Despite this carefully-crafted scheme, defendant now claims that Penal Law § 60.30 authorizes the sentencing court itself, at sentencing, to defer payment of the surcharge. According to him, Penal Law § 60.30 gives courts “the full power of civil authority,” which “includes the power to defer the payment of surcharges” (Defendant’s Letter at 5). Defendant’s claim finds no support in the language of that statute. Penal Law § 60.30 is entitled “Civil penalties,” and it provides: This article does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty and any appropriate order exercising such authority may be included as part of the judgment of conviction. As the terms of the statute makes plain, it simply authorizes a sentencing court to impose additional penalties beyond those set out in Penal Law Article 60. Contrary to defendant’s claims (Defendant’s Letter at 5), the statute says nothing about the sentencing court’s ability to grant any relief from the mandatory surcharge that Penal Law § 60.35 requires it to impose at sentencing. On the contrary, the statute provides merely that a court may enter “any appropriate order exercising such authority”— that is, the authority to levy additional penalties. See People v. Hopkins, 185 Misc.2d 312, 314 (Sup. Ct., Kings Co. 2000) (rejecting the defendant’s claim that Penal Law § 60.30 gives courts the authority to grant relief from the mandatory surcharge).10 10 Defendant’s reliance on People v. Pierce, 16 Misc.3d 1126(A) (Sup. Ct., N.Y. Co. 2007), does not help him. To be sure, Pierce relied on Penal Law § 60.30 to support the finding that defendants sentenced to longer than 60 days had a right to seek relief from the mandatory surcharge. Apart from the fact that that determination is incorrect, the court did not rule that the statute allowed defendant to exercise this right at sentencing, which is defendant’s position. DISTRICT ATTORNEY COUNTY OF NEW YORK 10 November 18,2014 In sum, the plain language and legislative history of the statutes gove:rning the imposition, collection, and defe:r:ral of the mandatory su:rcha:rge support the Appellate Division's determination that a sentencing court does not have the authority to defe:r the mandatory su:rcha:rge at sentencing. Consequently; the o:rde:r of the Appellate Division should be affirmed. cc: Kristina Schwa:rz, Esq. The Legal Aid Society Criminal Appeals Bu:reau 199 Wate:r Street New Yo:rk, New Yo:rk 10038 :nfully submitted, Sheila~ Assistant District Atto:rney (212) 335-9316