Summary
In Quinones, the Court of Appeals addressed a split in the appellate divisions, two of which prohibited courts from simultaneously imposing both restitution and the mandatory surcharge/CVAF, and two of which allowed that practice.
Summary of this case from People v. ParkisonOpinion
Argued and Submitted October 11, 2000.
Decided November 16, 2000.
Appeal, by permission of the Chief Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered August 9, 1999, which affirmed two judgments of the Rockland County Court (William K. Nelson, J.), rendered upon verdicts convicting defendant of robbery in the first degree and robbery in the second degree, sentencing defendant to indeterminate terms of imprisonment to run concurrently, and ordering defendant to pay two penalty assessments of $155 each and restitution to one of the victims in the amount of $100.
Yasmin M. Daley Duncan, Brooklyn, for appellant.
Michael E. Bongiorno, District Attorney of Rockland County, New York City (Ellen O'Hara Woods of counsel), for respondent.
The primary issue in this appeal is whether, consistent with Penal Law § 60.35(6), a sentencing court may simultaneously impose a sentence of restitution to the crime victim, along with the mandatory surcharge/crime victim assistance fee. Based on the clear language of that statute, we conclude that the sentencing court can order both, and we affirm the order of the Appellate Division.
Defendant was convicted after a jury trial of four counts of robbery in the first degree and two counts of robbery in the second degree. These charges arose out of two incidents, the first of which involved the robbery of a taxicab driver. Defendant along with three young women hired a cab to take them to a deserted location. Brandishing knives, they ordered the driver to give them money. The driver complied, giving defendant and his companions $100 in cash and then exited the cab. Defendant and the others drove away with the cab and its contents. In the second incident that same day, defendant and a young woman held their victim at knifepoint and demanded money. He had only 25 cents and a stick of gum, which defendant and his cohort took.
The robberies were charged in separate indictments but these were joined for trial. Defendant's accomplices accepted guilty pleas and agreed to testify against him at trial. After the jury returned guilty verdicts on all the robbery counts, County Court imposed a prison term for each conviction, and ordered defendant to pay the cab driver $100 in restitution (see, Penal Law § 60.27). The court also imposed the mandatory surcharge and crime victim assistance fee required under Penal Law § 60.35(6) for both robberies. The Appellate Division affirmed in all respects, and a Judge of this Court granted defendant leave to appeal.
This case raises an issue that has divided the Appellate Division Departments: whether a sentencing court may, under Penal Law § 60.35(6), order a defendant who has not yet made restitution to pay both restitution and a mandatory surcharge/crime victim assistance fee. Penal Law § 60.35(6) provides that "where a person has made restitution or reparation pursuant to section 60.27 of this chapter, such person shall not be required to pay a mandatory surcharge or a crime victim assistance fee."
The First and Third Departments prohibit a sentencing court from imposing the mandatory surcharge/crime victim assistance fee where restitution has been ordered (People v Espola, 238 A.D.2d 281 [1st Dept]; People v. Meade, 195 A.D.2d 756 [3d Dept]). The Second and Fourth Departments are of the view that both can be imposed simultaneously, and upon paying the restitution, defendant can obtain a refund of the mandatory surcharge/crime victim assistance fee (People v. Cabrera, 243 A.D.2d 720 [2d Dept]; People v. DeBerry, 117 A.D.2d 1006 [4th Dept]). Notably, the Second Department in Cabrera overruled its earlier decisions which had held that both could not be imposed simultaneously (People v. Cabrera, supra; see, People v. Moore, 176 A.D.2d 968; People v. Neff, 110 A.D.2d 721), and concluded from the language of Penal Law § 60.35(6) that only "where a person has made restitution" could the mandatory surcharge/crime victim assistance fee not be imposed.
We hold that the plain language of the statute permits the sentencing court to order both restitution and the mandatory surcharge/crime victim assistance fee where the defendant has not yet made restitution. The Legislature could have prohibited the imposition of both outright, but instead employed the past tense with regard to the payment of restitution and reparations under Penal Law § 60.27, thus indicating that until restitution has been paid a defendant can be ordered to pay the mandatory surcharge/crime victim assistance fee. As the Practice Commentaries to Penal Law § 60.35(6) note, the effect is to prefer and encourage payment of restitution to the crime victim (McKinney's Cons Laws of NY, Book 39, Penal Law § 60.35, at 294).
The mandatory surcharge/crime victim assistance fee is paid to the State to shift costs of providing services to victims of crime from "law abiding taxpayers and toward those who commit crimes" (1983 McKinney's Session Laws, at 2356 [Mem of State Executive Dept]; see, Penal Law § 60.35; State Finance Law § 97-bb; People v. Barnes, 62 N.Y.2d 702). Restitution, on the other hand, if awarded, is paid by the defendant through a designated collection official or organization to the victim and includes the "fruits of his or her offense or * * * the actual out-of-pocket loss caused thereby" (Penal Law § 60.27,[8]; CPL 420.10).
Furthermore, once restitution has been made, the mandatory surcharge and crime victim assistance fee "shall not be required" (Penal Law § 60.35). Indeed, Penal Law § 60.35(4) includes a mechanism whereby a person can seek a refund of those payments which are ultimately "not required" (see, People v Cabrera, supra, 243 A.D.2d, at 721). Thus, until a defendant has in fact made restitution, a sentencing court has the power to impose an order to pay both restitution and the mandatory surcharge/crime victim assistance fee.
Defendant's additional claims are without merit.
Accordingly, the order of the Appellate Division should be affirmed.
Order affirmed. Opinion by Judge Ciparick. Chief Judge Kaye and Judges Smith, Levine, Wesley and Rosenblatt concur.