Opinion
4517/2006.
October 31, 2008.
DECISION AND ORDER
The defendant, pro se, has moved, pursuant to CPL § 420.40, for a deferral of the payment of her mandatory surcharge. However, in fact, what she is seeking to defer is payment of the $500 fine imposed at sentencing upon her conviction under Vehicle and Traffic Law § 511(3)(a)(ii). The People have opposed the application for deferment, but address it as a motion to defer the mandatory surcharge.
What the defendant terms her "mandatory surcharge" is actually a $500 fine imposed against her; and the defendant makes no mention of an additional $50 obligation in mandatory fees.
In deciding this motion, the court has considered the defendant's moving papers, the People's opposition, and has reviewed the court file.
Under the captioned indictment, the defendant was originally charged with Aggravated Unlicensed Operation of a Motor Vehicle in the First, Second, and Third Degrees, but ultimately, entered a plea of guilty to the first degree offense in full satisfaction of this indictment, with a promised sentence of one year of incarceration. The defendant was subsequently sentenced on March 7, 2008 to the promised term and a fine of $500 was imposed, together with a Mandatory Surcharge of $45 and a $5 Crime Victim Assistance Fee. Apparently all of these monies are presently being collected from her inmate funds.
The defendant is seeking to defer payment of these monies on the ground of indigence and financial hardship. Specifically, Ms. Samuel avers in her supporting affidavit that she possesses no real property and has no income except for her $20 prison wages which she apparently earns weekly. The defendant thus contends that this meager income is hardly sufficient for her to pay the fine (and other charges).
While the defendant has not made separate reference to the $45 and $5 fees, to the extent she mistakenly calls her fine a mandatory surcharge, this court finds it appropriate to deem her application to be one seeking deferral of payment of all of the fees imposed at sentencing, which are all being paid from her inmate funds.
The People take no note of the fact that the defendant's application is primarily a request for deferral of the VTL conviction fine and instead treat this as the usual application for deferment of the mandatory surcharge and other fees, which application they are opposing. The People urge denial of the application insofar as the defendant has provided no compelling reason to defer these fees. On the contrary, they maintain that her assertions of indigence and limited prison earnings do not support a claim of undue hardship on herself or on her immediate family as to warrant deferring payment of the surcharge and fees. Accordingly, the People conclude that the defendant's motion should be denied as she has failed to distinguish herself from any other indigent inmate and has not substantiated any allegations of unreasonable hardship upon herself or her family.
Discussion
The court commences this discussion by noting that, under the Criminal Procedure Law, the payment provisions for fines (and restitution and reparation) are different than those for the mandatory surcharge (and DNA databank fee, and the crime victim assistance fee), except that with regard to both categories of monetary obligations, a defendant can be imprisoned for non-payment (see CPL 420.35 and CPL 420.10), and can pay off this debt by credit card (CPL 420.05).
See, CPL §§ 420.10 and 420.30.
See, CPL §§ 420.35 and 420.40.
Indeed, the Legislature has determined to treat the payment of fines quite differently from the payment of the mandatory surcharge (and related mandatory fees). Thus, the CPL provides for the remission of fines, restitution or reparation under certain circumstances (see, CPL 420.30), but, contrarily, CPL 420.35(2) and CPL 420.30(3) expressly prohibit the waiver of any of these mandatory fees (i.e., the mandatory surcharge, sex offender registration fee, DNA databank fee, and the crime victim assistance fee). Furthermore, even if not entitled to a complete remission of one's fine under CPL 420.30, a defendant might be able to make out a case for a reduction of his/her fine (see, CPL 420.10). Again, by contrast, no comparable relief lies with respect to the mandatory surcharge and related mandatory fees.
However, as will be discussed below, the CPL does permit deferral of the mandatory fees under certain circumstances.
Thus, a defendant, upon whom a fine has been imposed and who is experiencing financial difficulties and is unable to pay such fine, may apply for resentencing under CPL 420.10(5), pursuant to which the court is empowered to adjust the terms of payment, lower the amount of the fine (or restitution or reparation), revoke the payment portion of the sentence, or revoke the entire sentence and resentence such defendant.
Turning to the instant case, this court will address first the defendant's fine, to be followed by a discussion of her mandatory surcharge and crime victim's fee.
Upon a review of the defendant's papers, the court observes that Ms. Samuel has not herein applied for either remission of her fine or for a resentencing thereon. In any event, even assuming such an application had been brought before the court and properly made, this court would nevertheless have to deny Ms. Samuel any relief from the payment of her fine. This is so because the defendant's papers do not demonstrate that she would be entitled to such relief or even a hearing thereon. By its very terms, the statute which allows a defendant who is unable to pay his/her fine (or restitution or reparation) to move for resentencing expressly provides that "the court shall not determine that the defendant is unable to pay the fine, restitution or reparation order solely because of such defendant's incarceration . . ." (CPL 420.10, emphasis supplied). Rather, the court is enjoined to "consider all the defendant's sources of income . . . and any other funds received by him or on his behalf and deposited with the superintendent or the municipal official of the facility where the person is confined" (id.).
It appears to this court that Ms. Samuel is basing her deferment application upon the fact that she is incarcerated and that her prison earnings are small and that she has no other income. However, her papers are silent as to whether any other funds have been deposited on her behalf. Moreover, given that the defendant's sentence of incarceration is short (one year) and she will soon be released, this court does not find that her present payment difficulties would warrant a court making an ultimate determination that the defendant "is unable to pay the fine" simply because her debt cannot be fully satisfied from her prison earnings during her incarceration. Rather, under these circumstances, such a finding would be premature for the conclusion would really be based purely on the defendant's present incarceration and would not be taking into account both her overall financial situation as well as her potential for earning income upon her impending release from incarceration. Accordingly, this court finds no basis for presently concluding that any of the payment terms of the fine should be adjusted or waived (assuming a proper application therefor had been made).
Lastly, this court turns to what it's deeming the defendant's application to defer the payment of her mandatory surcharge and crime victim's fee.
With regard to this issue, it must first be observed that, while some courts have held to the contrary with regard to a defendant sentenced to a period of incarceration greater than 60 days (see, e.g., People v Hopkins, 185 Misc2d 312 [Kings Co. 2000]), this court is of the view that it is permissible, pursuant to CPL 420.40, to defer payment of a mandatory surcharge (see, People v Kistner, 291 AD2d 856 [4th Dept. 2002]; accord, People v Camacho, 4 AD3d 862 [4th Dept. 2004], lv. denied, 2 NY3d 761; People v Smith, 309 AD2d 1282, 1283 [4th Dept. 2003]; see also, People v Domin, 13 AD3d 391 [2nd Dept. 2004 — citing with approval, People v Huggins, 179 Misc2d 636, 637-638 (Greene County Ct. 1999)], lv. denied, 4 NY3d 830). Nevertheless, this does not mean that a defendant is entitled to deferral merely for the asking.
Rather, in order to obtain deferral of the surcharge and other mandatory fees, the defendant must establish by credible and verifiable information that present (installment) payment of such fees would work an "unreasonable hardship on defendant over and above the ordinary hardship suffered by other indigent inmates" (Kistner, supra, 291 AD2d at 856;People v Rodriguez, 292 AD2d 646, 647 [3rd Dept. 2002], lv. denied, 98 NY2d 654; People v Abdus-Samad, 274 AD2d 666, 667 [3rd Dept. 2000], lv. denied, 95 NY2d 862; People v Parker, 183 Misc2d 737, 738 [Sup. Court, Kings; 2000]).
Notwithstanding the defendant's apparent financial constraints, this court must conclude that the defendant here has failed to establish any particular hardship which is out of the ordinary and would warrant court intervention and an order granting deferment of the statutorily mandated charges. Thus, the court concludes that the defendant has not alleged the requisite "unreasonable hardship" (that payment of the surcharge is imposing upon the defendant or her immediate family) as would provide a basis for deferment, or require a hearing thereon.
The application to defer the mandatory surcharge and crime victim's fee, thus, must be denied.
Accordingly, the defendant's motion is, respectfully, denied in its entirety.
The foregoing constitutes the decision and order of the court.
The defendant is hereby advised of her right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal from this determination. This application must be made within 30 days of service of this decision. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is granted.