People v. Brian L.

• Decision Date: 28 September 2007
• Docket Number: No. YO 35648,YO 35648
• Citation: 2007 NY Slip Op 27393,17 Misc.3d 724,842 N.Y.S.2d 874
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. BRIAN L., Defendant.
• Court: New York District Court

17 Misc.3d 724

842 N.Y.S.2d 874

2007 NY Slip Op 27393

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. BRIAN L., Defendant.

No. YO 35648

City Court of Watertown.

September 28, 2007.

Julie Hutchins, Public Defender, Watertown (Matthew Porter of counsel), for defendant.

Cindy Intschert, District Attorney, Watertown (Rodney Kyle of counsel), for plaintiff.

Andrew M. Cuomo, Attorney General, Albany (Wayne L. Benjamin of counsel).

OPINION OF THE COURT

JAMES C. HARBERSON, JR., J.

The defendant, who is barely sentient enough to perceive the difference between right and wrong legally (having an IQ of less than 60), admitted to a violation of attempted forcible touching (Penal Law §§ 110.00, 130.52).

The defense argues that because the defendant has a permanent mental and/or physical disability that keeps him from ever engaging in income-producing activity, the court should not assess the various fees outlined in Penal Law § 60.35 at the time of sentence. The People and the Attorney General's Division of Appeals and Opinions have declined to respond regarding the issue of the constitutionality of the law.

In order to respond to this question raised by the defense, Penal Law § 60.35 and Criminal Procedure Law §§ 420.10, 420.35 and 420.40 should be reviewed in light of the facts of the case, in consideration of the issue of whether an apparently disabled defendant would be entitled to a hearing before being sentenced to determine if such disability is a permanent bar to him being able to engage in income-producing activity to earn income from which to ever pay the Penal Law § 60.35 fees; and, whether such laws as applied to him would be a due process violation of his constitutional rights.

Law

In People v Dunn (254 AD2d 511 [1998], lv denied 92 NY2d 1031 [1998], cert denied 527 US 1024 [1999]), the Court observed that "[i]t has been repeatedly held that Penal Law § 60.35 and CPL 420.35 treat all persons convicted of Penal Law offenses similarly, and that the penalties imposed pursuant thereto bear a reasonable relationship to the State's legitimate interest in raising revenues (see, People v Barnes, 62 NY2d 702)" (id. at 512).

In People v Amorosi (96 NY2d 180 [2001]), the Court stated that "depriving probationers of conditional freedom based simply on their indigence would be an invidious denial to one class of defendants of a substantial benefit available to another (Bearden v Georgia, 461 US 660)" (id. at 184).

In Bearden v Georgia (461 US 660 [1983]), the Court found that when a person has made a bona fide effort to pay a court-ordered fine, to "deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine . . . would be contrary to the fundamental fairness required by the Fourteenth Amendment" (id. at 672-673).

In Ross v Moffitt (417 US 600 [1974]), the Court said the Due Process Clause of the Fourteenth Amendment "emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated" (id. at 609).

In Grossman v Baumgartner (17 NY2d 345 [1966]), the Court stated that "a statute . . . will be upheld as valid if it has a rational basis, that is, if it is not unreasonable, arbitrary or capricious. (See, e.g., United States v Carolene Products Co., 304 US 144, 152 et seq.)" (id. at 349).

In People v Pergament (87 Misc 2d 1098 [1976]), the court concluded that "as long as the relationship between the means used and the end desired to be accomplished is not arbitrary, capricious or unreasonable our courts cannot substitute their judgment over that of a legislative body. (See Grossman v Baumgartner, 17 NY2d 345.)" (Id. at 1100.)

In Railroad Retirement Bd. v Alton R. Co. (295 US 330 [1935]), the Court said,

"When the question is whether the Congress has properly exercised a granted power the inquiry is whether the means adopted bear any reasonable relation to the ostensible exertion of the power. When the question is whether legislative action transcends the limits of due process . . ., decision is guided by the principle that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained" (id. at 348 n 5 [citations omitted]).

Decision

The decision of the Legislature to deny a waiver of these fees by the court after 1995 was based either on overlooking those people subject to them who, due to mental and/or physical disability, could not engage in any income-producing activity and had no other assets that could be used to pay them on the false premise that all criminal defendants could engage in income-producing activity from which sooner or later these assessments could be paid.

Until 1995, CPL 420.35 former (2) provided that "the judge . . . may waive all or any part of the mandatory surcharge where, because of the indigence of the offender, the payment of said surcharge would work an unreasonable hardship on the person . . . ."

In 1995, the Legislature changed the statute and made it quite clear the court could no longer waive the mandatory surcharge (with one "minor" exception), the crime victim assistance fee, the sex offender registration fee or the DNA databank fee. The legislative language instructs that the "court shall be mindful of the mandatory nature of [such assessments] and the important criminal justice and victim services sustained by such fees" (CPL 420.40 [3]) in making a decision to defer the payment of them and that "[u]nder no circumstances shall [such assessments] be waived" (CPL 420.35 [2]).

Penal Law § 60.35 (8) states that "at the time [these fees are] imposed . . . [the court] shall, issue and cause to be served upon the person required to pay [such fees] a summons directing that such person appear before the court regarding the payment of [them], if after sixty days from the date it was imposed it remains unpaid," and the "summons shall state that the person served must appear at a date, time and specific location specified in the summons if after sixty days [any of these fees] remains unpaid."

The sole criterion allowed to be used by the court in determining whether to grant a deferment, jail the defendant for nonpayment, or grant a waiver (of the crime victim fee) is whether at the time the court makes its ruling it finds these payments would "work an unreasonable hardship upon [the defendant]" (CPL 420.35 [1], [2]; 420.40 [2]) due to the defendant's "indigence."

CPL 420.35 (1) states that "[t]he provisions of section 420.10 . . . and the provisions of section 420.40 . . . governing deferral of [the fees] . . . and the provisions of section 430.20 . . . governing the commitment of a defendant for failure to pay a fine shall be applicable to [these fees]," and "[w]hen the court directs that the defendant be imprisoned until [these fees are] satisfied, it must specify a maximum period of imprisonment not to exceed fifteen days."

In the case whether a deferment of the payment is allowed or a jail term is imposed for nonpayment (CPL 420.35 [1]), a civil judgment for the amount due "shall" be filed against the defendant for the amount due (CPL 420.40 [5]).

The court finds that before and after 1995, Penal Law § 60.35 assessments had to be imposed on all defendants without exception based on a premise that each defendant had the ability to pay the total due within an initial 60-day period by making a reasonable effort. Before 1995, CPL 420.35 former (2) qualified this premise by allowing a judge the right to waive all or part of a Penal Law § 60.35 assessment when "because of the indigence of the offender, the payment . . . would work an unreasonable hardship on the person."

It is clear that in the case of a defendant whose mental and/or physical disabilities made it impossible to engage in income-producing activities—and who had no other assets—at the time of sentence, such person was indigent per se and would be granted an automatic waiver of the assessments by the judge as these payments "would work an unreasonable hardship on the person" suffering such disabilities.

It can be said, then, that while the Legislature did not specifically exclude a disabled person who had no means to earn a livelihood because of an inability to engage in income-producing activity, the general waiver power encompassed that situation giving relief to one who was indigent solely due to mental and/or physical disabilities.

After 1995 the legislation was changed to state that "[u]nder no circumstances shall the mandatory [Penal Law § 60.35 assessments] be waived" (with one "minor" exception) (CPL 420.35 [2]). This made the basic premise, that each defendant had the ability to pay the total due within a 60-day period after it was ordered by the court by making a reasonable effort, unmodified by the ability of the judge to waive the assessments in the case of an individual whose permanent mental and/or physical disabilities prohibited such person from engaging in income-producing activities (making him per se indigent), a false premise.

It would be counterintuitive to assume the Legislature would expect a person whose permanent mental and/or physical disabilities precluded any ability to engage in income-producing activity, who had no other assets and who is totally dependent to survive on federal and/or state programs supported by tax revenue, nonetheless to be able to make the same effort as others without impairments so assessed under Penal Law § 60.35 to make any payment ever, much less in 60 days.

The court finds that the Legislature simply overlooked this class of disabled defendants when abolishing a full waiver of the obligation to pay Penal Law § 60.35 assessments after 1995 because they were not singled out for relief before 1995, as they were subsumed in the general waiver available to others before the change of the statute, so...