The People, Respondent,v.Anthony Jones, Appellant.BriefN.Y.January 4, 2016APL-2014-00195 To be argued by SHEILA L. BAUTISTA (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ANTHONY JONES, Defendant-Appellant. BRIEF FOR RESPONDENT CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ALAN GADLIN SHEILA L. BAUTISTA ASSISTANT DISTRICT ATTORNEYS Of Counsel JUNE 17, 2015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 Preliminary Statement ................................................................................................ 1 Question Presented ..................................................................................................... 2 Summary of Argument ............................................................................................... 2 Procedural History ...................................................................................................... 3 THE PLEA AND SENTENCING PROCEEDINGS ................................................... 5 POINT AS THE LOWER COURTS RECOGNIZED, THE PLAIN LANGUAGE AND LEGISLATIVE HISTORY OF THE STATUTES GOVERNING THE MANDATORY SURCHAGE DEMONSTRATE THAT A SENTENCING COURT HAS NO DISCRETION AT SENTENCING TO DEFER PAYMENT OF THE SURCHARGE. ................................................................................................ 6 CONCLUSION ................................................................................................................... 19 TABLE OF AUTHORITIES FEDERAL CASES Chapman v. United States, 500 U.S. 453 (1991) ............................................................... 10 STATE CASES Kurcsics v. Merchants Mutual Insurance Company, 49 N.Y.2d 451 (1980) ................................................................................................................................ 16 Madison-Oneida Board of Co-Op Educational Services v. Mills, 4 N.Y.3d 51 (2004) ............................................................................................................ 16 People v. Arthur, 234 A.D.2d 792 (3d Dept. 1996) ......................................................... 16 People v. Bradley, 249 A.D.2d 103 (1st Dept. 1998) ......................................................... 5 People v. Dunn, 254 A.D.2d 511 (3d Dept. 1998) ........................................................... 16 People v. Farrar, 62 N.Y.2d 302 (1981) ............................................................................. 10 People v. Guerrero, 12 N.Y.3d 45 (2009) ......................................................................... 10 People v. Hopkins, 185 Misc.2d 312 (Sup. Ct., Kings Co. 2000) ................................... 18 People v. Johnson, 60 A.D.3d 1496 (4th Dept. 2009) ..................................................... 12 People v. Jones, 115 A.D.3d 490 (1st Dept. 2014) ....................................................... 5, 15 People v. Kistner, 291 A.D.2d 856 (4th Dept. 2002)....................................................... 17 People v. Larose, 120 A.D.3d 1442 (3d Dept. 2014) ....................................................... 12 People v. Lowery, 185 A.D.2d 364 (2d Dept. 1992) ........................................................ 17 People v. Mack, 237 A.D.2d 535 (2d Dept. 1997) ........................................................... 17 People v. Middlebrooks, N.Y. Slip Op. 04875 (June 11, 2015) ........................................ 7 People v. Mustafa, 178 A.D.2d 616 (2d Dept. 1991) ....................................................... 15 People v. Olivo, 156 Misc.2d 149 (Sup. Court, Kings Co. 1992) ................................... 17 People v. Pierce, 16 Misc.3d 1126(A) (Sup. Ct., N.Y. Co. 2007) ................................... 18 -ii- People v. Quinones, 95 N.Y.2d 349 (2000) ........................................................................ 8 People v. Snell, 161 A.D.2d 1125 (4th Dept. 1990) ......................................................... 16 People v. Thompson, 83 N.Y.2d 477 (1994) .................................................................... 10 People v. Waring, 126 A.D.3d 621 (1st Dept. 2015) ....................................................... 17 People v. West, 124 Misc.2d 622 (Co. Court, Yates Co. 1984) ...................................... 17 People v. Wheeler, 244 A.D.2d 277 (1st Dept. 1997) ........................................................ 5 People v. Williams, 19 N.Y.3d 100 (2012)........................................................................... 7 Roberts v. Tishman Speyer Properties, L.P., 13 N.Y.3d 270 (2009) .............................. 16 STATE STATUTES Correction Law § 187(1) ...................................................................................................... 11 Correction Law § 200(1) ...................................................................................................... 11 CPL 420.10 ............................................................................................................................ 15 CPL 420.10(5) ......................................................................................................... 5, 7, 15-17 CPL 420.30(3) ......................................................................................................................... 9 CPL 420.35 ........................................................................................................................ 9, 15 CPL 420.35(1) ....................................................................................................................... 15 CPL 420.35(2) ................................................................................................................... 9, 11 CPL 420.40 ................................................................................................... 4-6, 12-14, 17-18 CPL 420.40(1) .............................................................................................................. 6, 13-14 CPL 420.40(2) .................................................................................................................. 12-14 CPL 420.40(3) ....................................................................................................................... 11 CPL 420.40(5) ....................................................................................................................... 12 Penal Law Article 60 ............................................................................................................ 18 -iii- Penal Law § 60.30 ........................................................................................................ 6, 17-18 Penal Law § 60.35 ..................................................................................... 2, 4, 6-8, 12-14, 18 Penal Law § 60.35(1)(a) .......................................................................................................... 7 Penal Law § 60.35(1)(a)(i)-(iii) ............................................................................................... 8 Penal Law § 60.35(3) ............................................................................................................ 12 Penal Law § 60.35(5) ................................................................................................... 8-11, 16 Penal Law § 60.35(8) ............................................................................................ 5, 12-14, 17 Penal Law § 220.09(1) ............................................................................................................ 3 Penal Law § 220.16(1) ..................................................................................................... 1, 3-4 Penal Law § 220.39(1) ........................................................................................................ 1, 4 OTHER AUTHORITIES Approval Memorandum, Bill Jacket, L. 1992, ch. 794 ....................................................... 9 Budget Report on Bills, Bill Jacket, L. 1992, ch. 794 ...................................................... 8-9 L. 1983, ch. 15, § 2.................................................................................................................. 8 L. 1995, ch. 3, §§ 66-69 .......................................................................................................... 9 Memorandum of the State Executive Department, McKinney’s 1983 Session Laws of New York, Vol. 2 ................................................................................. 8 -iv- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANTHONY JONES, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION Preliminary Statement By permission of the Honorable Eugene F. Pigott, Jr., Associate Judge of the Court of Appeals, defendant Anthony Jones appeals from a March 11, 2014 order of the Appellate Division, First Department. That order affirmed two judgments from March 13, 2012 in the Supreme Court, New York County (Charles H. Solomon, J.), convicting defendant, upon his pleas of guilty, of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]) and Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]). Defendant was sentenced to concurrent terms of six months in jail. Defendant has completed that sentence. The court also imposed a $300 mandatory surcharge in each case. Question Presented Do the statutes governing the mandatory surcharge allow a court to defer the mandatory surcharge at sentencing? The Appellate Division, First Department answered that question in the negative. Summary of Argument In 1982, the mandatory surcharge was enacted to make criminal defendants financially responsible for the expenses incurred by victims of crime. In recognition of the opportunity defendants have to earn money while incarcerated, the Legislature has required the mandatory surcharge to be collected from inmate accounts since 1983. Thwarting the Legislature’s intent to hold defendants responsible for funding the crime victim assistance fund, judges waived or remitted the mandatory surcharge in the majority of cases. Thus, in the Sentencing Reform Act of 1995, the Legislature eliminated judicial discretion to waive or remit the mandatory surcharge. Consistent with the legislative intent, the plain language of the current statutes governing the imposition, collection, and deferral of mandatory surcharges—Penal Law Section 60.35 and CPL Article 420—demonstrates that, contrary to defendant’s claims, judges do not have discretion to defer the mandatory surcharge at sentencing. For defendants sentenced to less than 60 days, their first opportunity to request deferral of the surcharge is at a financial hardship hearing 60 days after their conviction. For -2- defendants sentenced to more than 60 days, their first opportunity to seek deferral is by way of a resentencing motion at the end of their incarceration. Procedural History Defendant’s convictions stemmed from two separate drug crimes. On September 4, 2011, a police officer stopped defendant for urinating in front of a bodega on Seventh Avenue in Manhattan. After running defendant’s name through police records, the officer discovered that defendant had an outstanding bench warrant and arrested him. The officer’s subsequent search of defendant revealed that he was carrying 59 bags of crack cocaine. On November 29, 2011, inside the same bodega on Seventh Avenue in Manhattan, defendant sold crack cocaine to an undercover officer during a buy-and- bust operation. After the sale, the undercover officer radioed the field team officers to tell them that a drug sale had taken place. The field team subsequently arrested defendant inside the bodega. The officers searched defendant and recovered $334, in addition to five rocks of crack cocaine from his underwear. On September 8, 2011, New York County Indictment Number 4456/2011 charged defendant with one count each of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]) and Criminal Possession of a Controlled Substance in the Fourth Degree (Penal Law § 220.09[1]), based on the events of September 4, 2011. On December 5, 2011, defendant was charged by New -3- York County Indictment Number 5616/2011 with one count each of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]) and Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]), based on the events of November 29, 2011. On February 14, 2012, defendant pleaded guilty before the Honorable Charles Solomon to one count of third-degree criminal possession of a controlled substance, in full satisfaction of Indictment Number 4456/2011, and one count of third-degree criminal sale of a controlled substance, in full satisfaction of Indictment Number 5616/2011. In exchange for his guilty plea, the court promised to sentence defendant to concurrent six-month terms in jail. On March 13, 2012, defendant was sentenced as promised. At sentencing, defendant asked the court to defer the mandatory surcharge. The court denied defendant’s request and imposed the mandatory surcharge, as required under Penal Law Section 60.35. On direct appeal to the Appellate Division, First Department, defendant argued that the sentencing judge erroneously believed that he had no authority to defer the mandatory surcharge at sentencing. He contended that at sentencing, he was entitled to a CPL 420.40 financial hardship hearing about deferring the payment of the mandatory surcharge. On March 11, 2014, the Appellate Division unanimously ruled that defendant’s claims “that he was entitled to a financial hardship hearing pursuant to CPL 420.40, -4- and that the hearing should have been held at the time of his sentencing, are not supported by the applicable statutes.” People v. Jones, 115 A.D.3d 490, 491 (1st Dept. 2014). Citing Penal Law Section 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 renews his claim that he was entitled to a CPL 420.40 financial hardship hearing at sentencing. THE PLEA AND SENTENCING PROCEEDINGS 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 (Plea: A15-A16).1 He admitted to the court that on September 4, 2011, he possessed cocaine with intent to sell it, and on November 29, 2011, he knowingly and unlawfully sold cocaine to an undercover police officer (Plea: A14-A15). In exchange for his guilty plea, the court 1 Parenthetical references beginning with “A” are to defendant’s appendix. -5- promised to sentence defendant to concurrent six-month terms in jail (Plea: A14- A15). On March 13, 2012, defendant appeared with counsel before Justice Solomon for sentencing. The parties relied on the promised sentence, and defendant agreed to a forfeiture of $334 (Sentencing: A5-A6). The court sentenced defendant as promised and imposed the mandatory surcharge in each of the cases, as required by Penal Law Section 60.35. Defense counsel asked the court to “consider deferring the surcharge” (Sentencing: A6). 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: A6-A7). POINT AS THE LOWER COURTS RECOGNIZED, THE PLAIN LANGUAGE AND LEGISLATIVE HISTORY OF THE STATUTES GOVERNING THE MANDATORY SURCHAGE DEMONSTRATE THAT A SENTENCING COURT HAS NO DISCRETION AT SENTENCING TO DEFER PAYMENT OF THE SURCHARGE (Answering Defendant’s Brief). On appeal to this Court, defendant continues to insist that the sentencing court erred in concluding that it had no power to defer the mandatory surcharge, and that he was entitled to a CPL 420.40 financial hardship hearing at sentencing. In support of his argument, defendant relies on CPL 420.40(1) and Penal Law Section 60.30 (Defendant’s Brief at 2-3, 8-13). Defendant also argues that, contrary to the First -6- Department’s view, CPL 420.10(5) is not the proper mechanism for seeking relief from the imposition of the mandatory surcharge (Defendant’s Brief at 3, 14). The plain language and legislative history of the relevant statutes do not support defendant’s claim. Instead, they make clear that the sentencing court indeed had no power to defer payment of the surcharge. Penal Law Section 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). The plain language of the statute is unambiguous: the court must impose the mandatory surcharge at sentencing. Penal Law Section 60.35 says nothing that authorizes the court to exercise its discretion to grant any relief from the mandatory surcharge at sentencing. “[T]he governing rule of statutory construction is that courts are obligated to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used.” People v. Middlebrooks, N.Y. Slip Op. 04875, *4 (June 11, 2015), quoting People v. Williams, 19 N.Y.3d 100, 103 (2012). Here, the Legislature made its intent clear through the unambiguous language of the mandatory surcharge statutes. Indeed, the legislative history of the relevant statutes demonstrates -7- that the Legislature did not want to empower courts to waive or defer the surcharge at sentencing. 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.” L. 1982, ch. 55, § 18; Memorandum of the State Executive Department, McKinney’s 1983 Session Laws of New York, Vol. 2 at 2357. 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). 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 Section 60.35 was amended to require the collection of the mandatory surcharge from inmate accounts. L. 1983, ch. 15, § 2; 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.” Budget Report on Bills, Bill Jacket, L. 1992, ch. 794 at 10. During the first six months of fiscal year 1992-1993, the mandatory surcharge was waived or remitted in nearly 80 percent of -8- cases in the busiest courts in New York State. Id. 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.” Approval Memorandum, Bill Jacket, L. 1992, ch. 794 at 14 [NY Senate Bill 9031]. In 1995, the mandatory surcharge became truly mandatory when the Legislature eliminated judicial discretion to waive or remit the mandatory surcharge. L. 1995, ch. 3, §§ 66-69. Specifically, it amended CPL 420.35(2) to read, as it does now, “Under no circumstances shall the mandatory surcharge, sex offender registration fee, DNA databank fee or the crime victim assistance fee be waived . . . .”2 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 2 The statute does provide one exception: a waiver of the mandatory surcharge is permissible if the court finds that the defendant was a victim of sex trafficking. CPL 420.35(2). -9- to stamp out prior efforts by sentencing courts to relieve defendants of the obligation to pay the surcharge. Defendant’s complaint that the sentencing judge was required to exercise his discretion to defer the mandatory surcharge (see Defendant’s Brief at 8-9, 15-16, citing People v. Farrar, 62 N.Y.2d 302, 309 [1981]), thus misses the critical point: the judge has no such discretion.3 Likewise, though defendant complains that waiting to seek deferral of the surcharge until after sentencing is an “unwieldy” procedure (Defendant’s Brief at 3), 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 Section 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’ 3 Defendant’s reliance on Farrar is particularly inapt because Farrar concerns sentencing discretion. As this Court has recognized, however, the mandatory surcharge is not part of a defendant’s sentence. People v. Guerrero, 12 N.Y.3d 45, 48 (2009). Notably, though, even when it comes to sentencing, “the Legislature may constitutionally define criminal punishments without giving courts any sentencing discretion.” People v. Thompson, 83 N.Y.2d 477, 482 (1994), citing Chapman v. United States, 500 U.S. 453, 466- 67 (1991). -10- fund or such moneys as may be earned by a person in a work release program.4 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 inmates’ 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 preventing sentencing judges from deferring payment of the mandatory surcharge is not an “injustice” because that bar permits the state to start collecting the surcharge immediately from the inmate’s fund (Defendant’s Brief at 15). 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 4 Inmates in the custody of the City of New York Department of Correction and the New York State Department of Corrections and Community Supervision (DOCCS) may earn money while incarcerated by working or participating in vocational or educational training programs. See City of New York Department of Correction, Directive 4014R-A (Inmate Incentive Pay Plan) (Apr. 11, 2007 revision); Correction Law § 187(1); Correction Law § 200(1). -11- 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, 120 A.D.3d 1442, 1443 (3d Dept. 2014); see People v. Johnson, 60 A.D.3d 1496, 1497 (4th Dept. 2009). For defendants sentenced to less than 60 days, 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 law5 . . . . 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 5 As defendant correctly notes (Defendant’s Brief at 10, n. 2), CPL 420.40’s reference to a summons issued pursuant to Penal Law Section 60.35(3) is in error. Penal Law Section 60.35(8) is the applicable subdivision governing the issuance of the summons for the financial hardship hearing. -12- surcharge, 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 Section 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, [t]he 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 Brief at 2-3, 8, 10-12). 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, but only for defendants sentenced to less than 60 days of incarceration. It is absurd for defendant to insist that with his longer sentence, he was entitled to a -13- financial hardship hearing sooner than a defendant with a shorter sentence. It would make no sense for the Legislature to order the uninterrupted collection of fees from the earnings of inmates serving 60-day sentences while they remained in custody, while simultaneously permitting prisoners serving considerably longer sentences, and earning considerably more money from the State, an opportunity to thwart the legislatively mandated collection of fees prior to their incarceration. In any event, no CPL 420.40 hearing was available to defendant at any time. CPL 420.40(1) itself says that “[t]he procedure specified in” CPL 420.40 “governs the deferral of a surcharge.” CPL 420.40(2) requires a summons pursuant to Penal Law Section 60.35 be issued to trigger a hearing. And, Penal Law Section 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 Section 60.35, then, CPL 420.40 itself makes financial hardship hearings entirely unavailable to defendants sentenced to more than 60 days. This detailed procedure for obtaining a financial hardship hearing further undermines defendant’s claim that he is eligible for this relief. If the Legislature truly wanted defendants sentenced to more than 60 days to qualify for a CPL 420.40 hearing, it would make no sense for it to set out detailed procedures for the defendants sentenced to less than 60 days, while providing no guidance at all regarding defendants sentenced to more than 60 days. -14- Yet defendants who receive sentences greater than 60 days still have an avenue for seeking relief. CPL 420.35(1) expressly makes the provisions of CPL 420.10 applicable to the mandatory surcharge. Accordingly, defendants who are unable to pay the mandatory 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 Brief at 13). 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 surcharges.6 Not surprisingly, then, lower courts have recognized CPL 420.10(5) resentencing motions to be an 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 6 Defendant claims that CPL 420.35 “limits applicability” of CPL 420.10 “to the provisions dealing with the ‘collection of fines,’” and reasons that because resentencing is “unrelated to the collection of fines,” CPL 420.10(5) does not apply to the mandatory surcharge (Defendant’s Brief at 14, n. 4). The Legislature, however, obviously does not agree with defendant’s effort to characterize resentencing relief from surcharges as a concept “unrelated” to collection of surcharges. After all, the resentencing provision is actually in a statute entitled “Collection of fines, restitution or reparation.” CPL 420.10. Thus, by stating in CPL 420.35 that “the provisions of section 420.10 of this article governing the collection of fines” are applicable to a mandatory surcharge, the Legislature was simply referring to CPL 420.40’s title, not “limiting” its applicability somehow. -15- 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, the Legislature’s insistence that defendants pay the mandatory surcharge, as embodied in the statutory scheme it established for collection and deferral of the surcharge, is incompatible with granting relief from its imposition at sentencing under any procedural vehicle.7 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 Section 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 Section 60.35(5) requires. People v. Arthur, 234 A.D.2d 792, 793 (3d Dept. 1996); 7 Defendant points to DOCCS Directive #2788, which contemplates instances when a sentencing court might defer payment of the mandatory surcharge (Defendant’s Brief at 15, n. 6). Here, the interpretation of the mandatory surcharge statutes is “one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent.” Roberts v. Tishman Speyer Properties, L.P., 13 N.Y.3d 270, 285 (2009), citing Kurcsics v. Merchants Mutual Insurance Company, 49 N.Y.2d 451, 459 (1980); see Madison- Oneida Board of Co-Op Educational Services v. Mills, 4 N.Y.3d 51, 58 (2004). In that situation, this Court accords no deference to an administrative agency’s interpretation of the law, especially when it “runs counter to the clear wording of a statutory provision.” Id. -16- 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 Co. 1984). Accordingly, lower courts have recognized that a challenge to the imposition of the mandatory surcharge “should be raised in the sentencing court by a motion for resentencing at the end of [a] defendant’s incarceration, and not on direct appeal.” People v. Waring, 126 A.D.3d 621, 621 (1st Dept. 2015); accord, People v. Mack, 237 A.D.2d 535, 535 (2d Dept. 1997).8 Indeed, by employing the 60-day summons procedure set forth in Penal Law Section 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 premature until a defendant has completed his prison term and is no longer subject to the legislatively- designed fee collection system. At that point, a motion for resentencing under CPL 420.10(5) is an option in appropriate cases. Despite this carefully-crafted scheme, defendant now claims that Penal Law Section 60.30 authorizes the sentencing court itself, at sentencing, to defer payment of the surcharge. He asserts that that is so because “the sentencing court is empowered 8 Cf. People v. Kistner, 291 A.D.2d 856 (4th Dept. 2002) (stating, without explaining, that the trial court erred in determining that it lacked authority pursuant to CPL 420.40 to defer surcharges, but finding deferral unwarranted). -17- by P.L. § 60.30 to administer the mandatory surcharges and other mandatory fees” (Defendant’s Brief at 12). Defendant’s claim finds no support in the language of that statute. Penal Law Section 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 provides that a sentencing court is not deprived of the power it otherwise has to impose civil penalties beyond those set out in Penal Law Article 60. Contrary to defendant’s claims (Defendant’s Brief at 3, 12), the statute says nothing about the mandatory surcharge, let alone the sentencing court’s ability to grant any relief from Penal Law Section 60.35’s requirement that the surcharge be imposed at sentencing. On the contrary, the statute provides merely that a court may enter “any appropriate order exercising such authority”— that is, the pre-existing 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 Section 60.30 gives courts the authority to grant relief from the mandatory surcharge).9 9 Defendant relies on People v. Pierce, 16 Misc.3d 1126(A) (Sup. Ct., N.Y. Co. 2007), which employed Penal Law Section 60.30 to support the finding that under CPL 420.40, a -18- (Continued…) In sum, the plain language and legislative history of the statutes governing the imposition, collection, and deferral of the mandatory surcharge support the lowers courts’ determinations that a sentencing court does not have the authority to defer the mandatory surcharge at sentencing. Consequently, the order of the Appellate Division should be affirmed. CONCLUSION The order of the Appellate Division should be affirmed. defendant 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. -19- ______________________ (…Continued) I \.: ALAN,GADLIN SHEILA L. BAUTISTA Assistant District Attorneys Of Counsel June 17, 2015 Respectfully submitted, CYRUS R. VANCE,JR. District Attorney New York County BY: __ ~~~~----------- S Assistant District Attorney -20- PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 5165, 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 2013. 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.