People v. Fuller

• Decision Date: 19 October 1982
• Citation: 455 N.Y.S.2d 253,57 N.Y.2d 152,441 N.E.2d 563
• Parties: , 441 N.E.2d 563 The PEOPLE of the State of New York, Respondent, v. Patricia FULLER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 253

455 N.Y.S.2d 253

57 N.Y.2d 152, 441 N.E.2d 563

The PEOPLE of the State of New York, Respondent, v. Patricia FULLER, Appellant.

Court of Appeals of New York.

Oct. 19, 1982.

Shirley Werner Kornreich, The Legal Aid Society--Criminal Appeals Bureau and William E. Hellerstein, New York City, for appellant

Robert M. Morgenthau, Dist. Atty., New York City (Debora K. Grobman and Mark Dwyer, Asst. Dist. Atty., New York City, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

This appeal, here by leave of a Judge of this court, presents us with our first opportunity to construe Penal Law sections authorizing the imposition of "restitution" or "reparation" as part of a sentence (Penal Law, §§ 60.27, 65.10, subd. 2, par. ). As recently amended, these statutes, among other things, reflect both a more flexible penological approach and a heightened awareness of the "concerns and needs of the victims of crime" (Hechtman, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 39, Penal Law, § 60.27). In particular, we are asked to decide whether, under the statutory scheme, a sentencing court, broad as its discretion to mold an appropriate disposition otherwise may be, is free to delegate the power to fix the conditions of such restitution or reparation to the Probation Department. We now hold that it is not.

A second question raised is whether, under the facts and circumstances in this case, a 21-month lapse of time between the discovery of the defendant's criminal conduct and the time of her arrest violated her due process right to prompt prosecution. We find this issue to be without merit.

Upon her plea of guilty, the defendant, Patricia Fuller, stands convicted of grand larceny in the second degree (Penal Law, § 155.35). This stemmed from her unlawful receipt, from September, 1973 to December, 1975, of $5,994 in public assistance moneys, in violation of section 145 of the Social Services Law by concealing the fact that she then was gainfully employed. Her conduct first came to the attention of public authorities when it was discovered by the Social Services Department in December, 1975, but the department did not so inform the District Attorney until December, 1976 and she was not arrested until September 20, 1977.

It was on this delay that the defendant predicated her due process claim, urging it initially on an unsuccessful pretrial motion. Her guilty plea followed. At the sentencing, the trial court imposed a five-year term of probation and directed the defendant to make restitution "in the amount of her defalcation in a manner consistent with that to be set by the probation department". ¹ In implementing this delegation, the department thereupon required the defendant to sign a confession of judgment in which she acknowledged a debt of $7,611.82 to the Social Services Department of the City of New York. That sum, substantially in excess of the $5,994 covered by the indictment, was arrived at by including additional benefits received during the 15 months following the completion of the crime charged. ²

On these facts, turning first to her restitution point, we note, preliminarily, that defendant registered no objection, either at sentence, by way of postjudgment motion or even on her appeal to the Appellate Division, 83 A.D.2d 994, 443 N.Y.S.2d 672, to the fact that the Probation Department rather than the sentencing court passed on the amount and manner in which the restitution requirement was to be satisfied. Failure to challenge a procedure at a time when a trial court still has an opportunity to take effective correction action as a general rule will forfeit the right of review by this court (CPL 470.05, subd. 2; People v. Drummond, 40 N.Y.2d 990, 391 N.Y.S.2d 67, 359 N.E.2d 663, cert. den. sub nom. New York v. Luis J., 431 U.S. 908, 97 S.Ct. 1706, 52 L.Ed.2d 394). But it has long been the law that the "essential nature" of the right to be sentenced as provided by law, though not formally raised at the trial level, preserves a departure therefrom for review in this court (People v. Craig, 295 N.Y. 116, 120, 65 N.E.2d 192; People v. Bradner, 107 N.Y. 1, 4-5, 13 N.E. 87; Cohen and Karger, Powers of the New York Court of Appeals § 199, pp. 750-751). ³

Proceeding then to substantive consideration of the legality of the delegation of the restitution element of the defendant's sentence, we observe that the power of a court to order offenders to compensate the victims of their crimes is not new to the criminal justice system. Provision for a court to direct restitution may be found in our early probation statutes at least as far back as 1910 (Code Crim.Pro., § 483, subd. 2; § 932) and its use has long been advocated by a variety of standard-setting bodies (National Advisory Commission on Criminal Justice Standards and Goals, Standards on Probation and Parole, § 5.4, subd. 2; § 5.5, subd. 3; Model Sentencing Act, § 9; National Commission on Reform of Federal Criminal Laws, Study Draft § 3302; American Bar Association, Projects on Minimum Standards for Criminal Justice, Standards Relating to Probation, § 3.2, subds. par ALI Model Penal Code, § 301.1, subd. par cf. Bradford v. United States, 228 U.S. 446, 33 S.Ct. 576, 57 L.Ed.2d 912). ⁴ Therefore, though the unfortunate current prevalence of crime has drawn renewed and intensified attention to sentencing in general and compensation for crime victims in particular, ⁵ the latter has long been an integral part of the former.

Consistent with these developments, New York's implementing statutes vest a great deal of discretion in the sentencing authority. They also make clear that a decision to direct a defendant to make "restitution of the fruits of his offense or reparation for the loss or damage caused rests with it alone (Penal Law, § 60.27, subd. 2; § 65.10, subd. 2, par. ).

Perhaps above all, it is manifest that the Legislature's intention was to keep the responsibility for dealing with this increasingly emphasized feature of sentencing in the hands of our Judges and no one else. Nowhere does it as much as mention any other agency in this regard. Rather, section 60.27's subdivision 1 specifically speaks of "discretion" of "the court" alone, while its subdivision 2 emphatically advises that it is "the court" which must make a "finding" as to the "fruits" or "damage" resulting from the offense and that it is likewise "the court" which is to conduct any hearing thought necessary for this purpose. Moreover, the section's subdivision 5 in particular refers to the "amount of restitution or reparation" required "by the court". Similarly, section 65.10 is precise in providing that it is "the court" which "shall fix the amount the manner of performance".

Consonantly, the Appellate Division, Second Department, the only New York court to have ruled on the issue, has held that the court's responsibility for performing these functions may not be delegated to the Probation Department (People v. Julye, 64 A.D.2d 614, 406 N.Y.S.2d 529; People v. Thigpen, 60 A.D.2d 860, 400 N.Y.S.2d 584). ⁶ In Thigpen, the court recognized that the amount and manner of restitution was not a perfunctory matter, but one which required nisi prius to make "findings of the sum actually due, with appropriate allowances made for offsets or other factors which could properly reduce the total amount". Hardly less can be necessary under a statutory scheme which not only calls for a determination of the "fruits of offense" or "reparation, in an amount can afford to pay" (Penal Law, § 65.10, subd. 2, par. ).

This is not to say that the Probation Department may play no part in ascertaining the appropriate amount to be set. On the contrary, a court may call on it to act as a preliminary fact finder and submit its recommendations in a written report. Nevertheless, in the end it is for the court, which alone must impose the sentence, to decide how much of the report, if any, to adopt and how much to reject. Since, in the present case, the court deviated from this course, the sentence cannot stand.

We now come to the defendant's second contention, that she was denied her due process right to prompt prosecution by the passage of the 21-month interval between the time that her crime had been completed and the time of her arrest. ⁷

It is beyond dispute that, although a District Attorney, in representing the State, is vested with broad discretion to "initiate, prosecute and discontinue" criminal prosecutions (People v. Zimmer, 51 N.Y.2d 390, 394, 434 N.Y.S.2d 206, 414 N.E.2d 705 and authorities cited thereat), unexplained and unreasonable delay in commencing a prosecution may constitute a denial of due process entitling a defendant to dismissal (People v. Singer, 44 N.Y.2d 241, 253-254, 405 N.Y.S.2d 17, 376 N.E.2d 179). True, a suspect's primary protection against protracted delay in being brought to bar ordinarily is the Statute of Limitations, but delay in arresting or lodging charges over a lesser period of time may, in special circumstances, impair the right to a fair trial (People v. Singer, supra, at p. 252, 405 N.Y.S.2d 17, 376 N.E.2d 179, citing to ...